To not stray from their words: That we were prevented from disagreeing with the masters of the tradition, peace be upon them, and from changing their words and to not remove ourselves from the commandments in all matters of the Torah. And about this is it stated (Deuteronomy 17:11), “you shall not stray from the matter that they tell you right or left.” And they, may their memory be blessed, said in Sifrei Devarim 154, “‘You shall not stray’ — this is a negative commandment.”
It is from the root of the commandments [that it is] because (see Ramban on Deuteronomy 17:11) the opinions of people are different from one another — never will many intellects agree on things. And the Master of all, blessed be He, knew that if the intention of the verses of the Torah would be given over to the hand of each and every human being — each man, according to his intelligence — every one of them will explain the words of the Torah according to his [own] rationale; and disagreement about the meaning of the commandments would increase in Israel, and the Torah will become like several Torahs — like the matter that I wrote on the commandment of “to incline towards the many” in the Order of Mishpatim (Sefer HaChinukh 78). Hence our God, Who is the Master of all the wisdoms, made our Torah — the Torah of truth — perfect with this commandment; that we were commanded to act within [the Torah] according to the true understanding that was received by our early Sages, peace be upon them; and that we should listen to the sages present [now] that received their words, drank the words of their books, and exerted themselves with many exertions — day and night — to understand the depth of their words and the wonders of their opinions. And with this agreement, we will arrive at the true path in the knowledge of the Torah; and without it — if we are seduced after our thoughts and the poverty of our minds — we will not be successful at anything. And by way of the great truth and praise of this commandment, they, may their memory be blessed, said (Sifrei Devarim 154), “‘You shall not stray from [it] right or left’ — even if they say to you about right that it is left, do not stray from their commandments” — meaning to say that even if they err in one of the things, it is not fitting for us to differ with them. Rather, we should do like their mistake. And it is better to suffer one mistake, and everything be given over under their constant good opinion; and not that each and every one go according to his [own] opinion. As with [the latter], there would be destruction of the religion, dissent in the heart of the people and total loss of the nation. And because of these things, the intention of the Torah was given over to the sages of Israel. And from this root, they were also commanded that the small group of the sages is subordinate to the group of the numerous [sages], and as I wrote there about the commandment of “to incline towards the many.”
By way of this idea that I have raised for you, my son — through it, will I explain to you a certain homelitical teaching, which is in the end of the chapter [entitled] HaZahav in Bava Metzia 59b, regarding the story of Rabbi Eliezer the Great and the “oven of Achnai,” which bewilders all who hear it. They said there, “Rabbi Natan met Eliyahu, etc. He said to him, ‘What did the Holy One, Blessed be He, do in that hour?’ He said to him, ‘He smiled and said, “My sons have vanquished Me...”’” — meaning that the Holy One, blessed be He, was happy that His sons were walking in the way of the Torah and its commandment, to incline towards the many. And that which He said, “My sons have vanquished Me,” God forbid that there is any victory before Him, blessed be He. Rather, the explanation about this idea is that in the debate of Rabbi Eliezer with his colleagues, the truth was with Rabbi Eliezer; and like the words of the heavenly voice (bat kol) that decided like him. But even though the truth was with him about this — because of his greater analysis over his colleagues — they could not completely fathom his opinion. And [so] they did not want to concede to him even after the heavenly voice; and they brought a proof from the law set in the Torah that commanded us to always go after the many — whether they say the truth or whether they are mistaken. And about this was the response of the Creator, blessed be He, “My sons have vanquished Me.” Meaning, since they turned away from the true path — for Rabbi Eliezer had surmised the truth about this — and they came upon him from the power of the Torah commandment that I commanded them to always listen to the majority; if so, one must nonetheless concede to them this time — like their words — that the truth be absent. And behold, it is as if the Master of truth was defeated.
From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 87a), that even though one who transgresses that which the Sages explained about the words of the Torah, transgresses this negative commandment of “you shall not stray”; nonetheless a man does not have the designation of a rebellious judge — known in the Gemara at the end of Sanhedrin 89a, who is liable for the death penalty — until he disagrees with the Great Court (see Mishneh Torah, Laws of Rebels 3:5, 7), and that he is a sage that has reached [the level] of pronouncing decisions [and] is ordained like the [members of the] Sanhedrin, and that he disagrees with them on a matter the volitional transgression of which [brings] excision and the inadvertent violation of which [brings] a sin-offering, and he instructs to do according to his decision or [himself] does the act according to his decision, as it is stated (Deuteronomy 17:12), “who wantonly does” — and not that he only instructs. But if he is a student that has not reached [the level] of pronouncing decisions, and makes a decision; he is exempt, as it is stated (Deuteronomy 17:8), “If a matter is baffling to you” — one who only a baffling thing is beyond him. And so [too,] if he found them outside of the Compartment of Paved Stone (in the Temple) and he rebelled against them, he is exempt, as it is stated, “and you will arise and go up to the place” — teaching that the place causes (is a requirement for) the death penalty.
And the [law is like this], whether he disagrees about something that actually has excision for its volitional transgression (see Mishneh Torah, Laws of Rebels 4:2) or something that brings to something that has excision for its volitional transgression. What is an example of something that has excision for its volitional transgression? Such as: that they disagreed about whether a certain woman is [sexually forbidden to a man] or not; if a certain blood renders impure or does not render impure; if a certain woman is [in the category of impurity called] zavah or is not a zavah; if a certain fat is forbidden or not and all that is similar to this. What is an example of something that brings to something that has excision for its volitional transgression? Such as: that they disagreed about the intercalation of the year which [can] bring to the eating of chamets on Pesach; and so [too,] if they disagreed about a law in the monetary laws, such that according to one, the one took money from his fellow legally, and if he married a woman with it, she is married, and one [besides her husband] who has sexual relations with her volitionally is punished with excision, and when inadvertent, liable for a sin-offering, but according to the words of the other, he is exempt, and so [too,] in every matter in which money is to be extracted, such as those obligated by expropriations or evaluations, [the disagreement being about] whether they are liable to give [money] or not liable — that which they took from them [not according to the correct law] is theft, and if he marries a woman with it, she is not married; and so [too,] anything like this. And even if they disagreed about the laws of lashes, he is liable [to be a rebellious elder] as a result of them — as behold, according to the words of the one that [holds] he is not liable for lashes in court, they are obligated to pay the value of his injury, and he would legally take his payments from them.
And Rambam, may his memory be blessed, wrote about the matter of this negative commandment of “you shall not stray” (Mishneh Torah, Laws of Rebels 1:2) that it is one whether they are things that the Sages learned from the received tradition, or things they learned from their intellects through one of the methods through which the Torah is expounded or things done to make a fence for the Torah — and they are the decrees, the ordinances and the practices (see Rashi on Yoma 74a, s.v. ve’aliba) — in each one of these three things, it is a positive commandment to listen to them; and the one who transgresses any one of them transgresses a positive commandment and a negative commandment. And Ramban, may his memory be blessed, greatly took a hold upon him [about this] and said (in the Sefer HaMitzvot in his gloss on Shoresh 1): Behold, the rabbi holds that included in the negative commandment of “you shall not stray” is everything that is from the words of the Rabbis — whether it is a rabbinic commandment such as the reading of the Scroll [of Esther] or the Channukah light, or whether it is from the ordinances such as poultry meat with milk and the secondary sexual prohibitions; whether they are active positive, such as three prayers every day or a hundred blessings and lulav on [all] seven [days] in the borders (outside of the Temple); or they are negative, such as anything that is because of a rabbinic Shabbat prohibition on Shabbat and holidays, and so [too,] the second day of a holiday in the Diaspora and the [fast of the] Ninth of Av; and more generally, anything that the Talmud forbids or commands about. And behold, the rabbi builds a fortified wall around the words of the Sages, but it is “like a spreading breach that occurs in a lofty wall, whose breaking comes sudden and swift”; as it is a rationale [that is found] wanting in many places in the Talmud. As behold, according to his opinion, one who uses what is connected to the ground on Shabbat, such as one who leans on a tree, or one who moves something from the sun to the shade or says to a gentile [to do work] and he does it or even if he takes a large step on Shabbat, he transgresses [both] a positive commandment and a negative commandment from the Torah, and he is fit to be lashed forty [lashes]. But the rabbi exempts him in the Book of Judges (Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 18:2), because it is given to the warning of a death penalty by the court — as the death penalty of anyone who rebels against their words is with strangulation. And behold, according to his words, he should be lashed according to the opinion in the Talmud that says that we administer lashes for a negative commandment that is subject to the warning of a death penalty by the court — as is mentioned in the chapter [entitled] Mi Shehichshikh (Shabbat 154b). And according to that opinion, it is fitting to be very stringent in rabbinic laws, as they are all [from the] Torah. There is no difference at all between them and between the commandments explicit in the Scripture; and there [would] be nothing in the Torah more weighty than a rabbinic Shabbat prohibition which is of their words, except that which has a liability of excision or the death penalty by the court — but not anything that has the obligation of a positive commandment or a negative commandment. As behold, according to his opinion, there is the obligation of a positive commandment and a negative commandment in all of their words — the positive commandment of “And you shall act according to the thing that they tell you,” and the negative commandment of “you shall not stray.”
And behold it is seen that our Rabbis in all of the Gemara say the opposite of this. As behold, they determine all rabbinic cases leniently, as they always say (Beitzah 3b), “A doubt of Torah [law] is to be [ruled] stringent and a doubt of rabbinic [law] is to be [ruled] lenient. And they were lenient regarding a concern of rabbinically forbidden [products being present in a certain food], to say, “As I say” (that we can assume that it is not present). And they said in the first chapter of Pesachim 9b, “I will say that we say, ‘As I say,’ in a rabbinic [law]; in a Torah [law], can we say, ‘As I say?’” And they relied upon minors who are not fit to testify, to testify on that which is rabbinic, as they said (Pesachim 4b), “The checking for chamets is rabbinic, and the Rabbis relied upon them in rabbinic [laws].” And so [too,] regarding perimeters, a minor is believed to say, “The perimeter of Shabbat is to here,” [as they] “held that perimeters are rabbinic, and the Rabbis were lenient in the rabbinic,” as it is found in Eruvin 58b and in Ketuvot 28b. And they were also likewise lenient in the rabbinic with doubts, as they, may their memory be blessed, said (Berakhot 21a), “[If] there is a doubt if he prayed or if he did not pray, he does not go back and pray; [if] there is a doubt if he said, ‘True and solid’ or he did not say it, he goes back” — and they said, “What is the reason? Prayer is rabbinic; ‘True and solid’ is from the Torah.” And not only that, but they were even lenient about things that contradict each other in rabbinic [law] — as they said in the chapter [entitled] Bameh Madlikin (Shabbat 34a), “[If] two [people] said to him, ‘Go out and make an eruv for us’; he made an eruv for one while it was still day, etc.,” as it appears there. And it is also seen in the Gemara that we constantly uproot their words on account of a Torah prohibition; as they said in Tractate Shabbat 4a, “If he stuck bread onto an oven [wall], they permitted him to scrape it off before he comes to a prohibition [that is punished with] stoning.” And there in Shabbat 128b they said, “Negating a vessel from its preparedness is rabbinic, but [causing] the pain of animals is [from] the Torah, and a positive commandment [from] the Torah comes and negates a positive commandment [from] the Rabbis,” as it appears there. And this is [something seen] very much in the Talmud — a positive commandment [from] the Torah comes and pushes off a positive commandment [from] the Rabbis. And so [too] with a disagreement among the Sages, they said (Avodah Zarah 7a), “If one [group] was greater in wisdom, follow it; and if not, follow the stringent [one] in that of the Torah, and the lenient in that of the [Rabbis].” And even greater than this, they said (Eruvin 67b), “In that of the [Rabbis,] we first do the act, and then we deliberate.” And in the chapter [entitled], Mi Shehichshikh (Shabbat 154b), they said, “What is it that you would say? They were also concerned with a small loss. Hence, it makes us hear” — as it is a novelty with them when they do not push off the words of the [Rabbis], even for a small loss. And they said (Berakhot 19b) that priests can render themselves impure with rabbinic impurity to see kings of the nations of the world; so that if they merit [it], they will differentiate that [which separates] the kings of Israel, etc. And also regarding the punishments of the words of the [Rabbis], they only have excommunication, as they said (Pesachim 52), “We excommunicate for the two days of holiday in the Diaspora.” And they said about one who does work on Purim, “Let the master excommunicate him.” And in [some] places, they have lashes of rebellion, and that is for one that transgress their words that are similar to [commandments] of the Torah — and those are all the decrees that they decreed from their [own] words — that they lash him until he accepts it upon him or until his soul departs, as is explained in the Tosefta of Sanhedrin. The general rule of the matter is that the words of the [Rabbis] are different in all of their laws from the words of the Torah, that [the one tends] towards leniency, and [the other] towards stringency. But the thing that is clear and clean of any confusion is that this negative commandment of “you shall not stray” is only in that which they, may their memory be blessed, said in explanation of the Torah — such as things that are expounded through a gezerah shava or a binyan av or the rest of the thirteen methods through which the Torah is expounded; or about the meaning of the language of the verse itself — and so [too] regarding that which they received as a law of Moshe from Sinai. And it is about this that they, may their memory be blessed, said that there is a positive commandment and a negative commandment in the thing. And if in this matter, one fitting to pronounce decisions disagrees with the Great Court about that which the volitional transgression [brings] excision and the inadvertent violation [brings] a sin-offering, he becomes a rebellious elder through them — at a time when we judge capital cases. And this is [the meaning of] that which they, may their memory be blessed, said (Sifrei Devarim 154), “Even if they tell you about the left that it is right”; meaning to say that this is the commandment upon us from the Master of the Torah, may He be blessed — that we believe the greats regarding what they say, and that the one who disagrees not say, “How can I permit it for myself, since I know with certainty that they are mistaken?” As even if it will be such, it is a commandment to listen to them — as I wrote above at the beginning of the commandment — and like the matter that Rabban Gamliel conducted with Rabbi Yehoshua on Yom Kippur that fell out according to [the latter’s] calculation, as is mentioned in Rosh Hashanah 25a.
And there is one condition about this law according to that which they, may their memory be blessed, said in Tractate Horayot 2b, that if at the time of the Sanhedrin, there was a wise man who was fitting to pronounce decisions or was part of the Sanhedrin, and the Great Court decided not like his opinion, he is not allowed to permit himself the matter that is forbidden according to his opinion, until he gives and takes (discusses) with them about the thing, and after they all — or their majority — agree to the negation of that opinion, confound his rationale against him and come to the conclusion that he is mistaken; [only] then is he allowed to act for himself according to the permissibility about that which it was his opinion to forbid — and it is also a commandment upon this one to accept their opinion regardless. But with the ordinances and the decrees that the Sages made as a protection of the Torah and as its fence, this negative commandment is only a [recommendation], and there is no law of rebellion about them at all. And the rest of the details of the commandment are elucidated at the end of Sanhedrin ([in the] chapter [entitled] HaNechenakin).
And this commandment is practiced concerning the matter of the rebellious elder at the time of the [Temple]. And concerning the matter to listen to the words of our ancient Sages and to our greats in the wisdom of the Torah and to our judges in our generation, it is practiced in all places and at all times by males and females. And one who transgresses this and “breaches a fence” in one of all of that which our Rabbis taught us in explanation of the Torah — such as through one of the thirteen methods or something forbidden from a law of Moshe from Sinai, and like the matter that we wrote adjacently — has violated this negative commandment, besides violating the positive commandment in it. But we do not administer lashes for it, since it is subject to the warning of a death penalty by the court with the law of the rebellious elder, and as we wrote.
שֶׁלֹּא לָסוּר מִדִּבְרֵיהֶם – שֶׁנִּמְנַעְנוּ מִלַּחְלֹק עַל בַּעֲלֵי הַקַּבָּלָה עֲלֵיהֶם הַשָּׁלוֹם וּמִלְּשַׁנּוֹת אֶת דִּבְרֵיהֶם וְלָצֵאת מִמִּצְוָתָם בְּכָל עִנְיְנֵי הַתּוֹרָה, וְעַל זֶה נֶאֱמַר (דברים יז יא) לֹא תָסוּר מִן הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ יָמִין וּשְׂמֹאל, וְאָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּסִפְרֵי (כאן), לֹא תָסוּר, זוֹ מִצְוַת לֹא תַעֲשֶׂה.
To not stray from their words: That we were prevented from disagreeing with the masters of the tradition, peace be upon them, and from changing their words and to not remove ourselves from the commandments in all matters of the Torah. And about this is it stated (Deuteronomy 17:11), “you shall not stray from the matter that they tell you right or left.” And they, may their memory be blessed, said in Sifrei Devarim 154, “‘You shall not stray’ — this is a negative commandment.”
מִשָּׁרְשֵׁי הַמִּצְוָה (עי' רמב"ן עה"ת יז יא). לְפִי שֶׁדֵּעוֹת בְּנֵי אָדָם חֲלוּקִין זֶה מִזֶּה, לֹא יִשְׁתַּוּוּ לְעוֹלָם הַרְבֵּה דֵּעוֹת בִּדְבָרִים, וְיָדַע אֲדוֹן הַכֹּל בָּרוּךְ הוּא שֶׁאִלּוּ תִּהְיֶה כַּוָּנַת כְּתוּבֵי הַתּוֹרָה מְסוּרָה בְּיַד כָּל אֶחָד וְאֶחָד מִבְּנֵי אָדָם, אִישׁ אִישׁ כְּפִי שִׂכְלוֹ, יְפָרֵשׁ כָּל אֶחָד מֵהֶם דִּבְרֵי הַתּוֹרָה כְּפִי סְבָרָתוֹ, וְיִרְבֶּה הַמַּחְלֹקֶת בְּיִשְׂרָאֵל בְּמַשְׁמָעוּת הַמִּצְוֹת, וְתֵעָשֶׂה הַתּוֹרָה כְּכַמָּה תּוֹרוֹת, וְכָעִנְיָן שֶׁכָּתַבְתִּי בְּמִצְוַת אַחֲרֵי רַבִּים לְהַטּוֹת בְּסֵדֶר מִשְׁפָּטִים (מצוה עח). עַל כֵּן, אֱלֹהֵינוּ שֶׁהוּא אֲדוֹן כָּל הַחָכְמוֹת הִשְׁלִים תּוֹרָתֵנוּ תּוֹרַת אֱמֶת עִם הַמִּצְוָה הַזֹּאת שֶׁצִּוָּנוּ לְהִתְנַהֵג בָּהּ עַל פִּי הַפֵּרוּשׁ הָאֲמִתִּי הַמְקֻבָּל לַחֲכָמֵינוּ הַקַּדְמוֹנִים עֲלֵיהֶם הַשָּׁלוֹם, וּבְכָל דּוֹר וָדוֹר גַּם כֵּן שֶׁנִּשְׁמַע אֶל הַחֲכָמִים הַנִּמְצָאִים שֶׁקִּבְּלוּ דִּבְרֵיהֶם, וְשָׁתוּ מַיִם מִסִּפְרֵיהֶם, וְיָגְעוּ כַּמָּה יְגִיעוֹת בַּיָּמִים וּבַלֵּילוֹת לְהָבִין עֹמֶק מִלֵּיהֶם וּפְלִיאוֹת דֵּעוֹתֵיהֶם, וְעִם הַהַסְכָּמָה הַזֹּאת נְכַוֵּן אֶל דֶּרֶךְ הָאֱמֶת בִּידִיעַת הַתּוֹרָה. וְזוּלַת זֶה, אִם נִתְפַּתֶּה אַחַר מַחְשְׁבוֹתֵינוּ וַעֲנִיּוּת דַּעְתֵּנוּ לֹא נִצְלַח לַכֹּל. וְעַל דֶּרֶךְ הָאֱמֶת וְהַשֶּׁבַח הַגָּדוֹל בְּזֹאת הַמִּצְוָה אָמְרוּ זִכְרוֹנָם לִבְרָכָה (ספרי כאן) לֹא תָסוּר מִמֶּנּוּ יָמִין וּשְׂמֹאל, אֲפִלּוּ יֹאמְרוּ לְךָ עַל יָמִין שֶׁהוּא שְׂמֹאל לֹא תָּסוּר מִמִּצְוָתָם, כְּלוֹמַר, שֶׁאֲפִלּוּ יִהְיוּ הֵם טוֹעִים בְּדָבָר אֶחָד מִן הַדְּבָרִים אֵין רָאוּי לָנוּ לַחְלֹק עֲלֵיהֶם, אֲבָל נַעֲשֶׂה כְּטָעוּתָם, וְטוֹב לִסְבֹּל טָעוּת אַחַת וְיִהְיוּ הַכֹּל מְסוּרִים תַּחַת דַּעְתָּם הַטּוֹב תָּמִיד, וְלֹא שֶׁיַּעֲשֶׂה כָּל אֶחָד וְאֶחָד כְּפִי דַּעְתּוֹ, שֶׁבָּזֶה יִהְיֶה חֻרְבַּן הַדָּת, וְחִלּוּק לֵב הָעָם, וְהֶפְסֵד הָאֻמָּה לְגַמְרֵי. וּמִפְּנֵי עִנְיָנִים אֵלֶּה, נִמְסְרָה כַּוָּנַת הַתּוֹרָה אֶל חַכְמֵי יִשְׂרָאֵל, וְנִצְטַוּוּ גַּם כֵּן שֶׁיִּהְיוּ לְעוֹלָם כַּת מוּעֶטֶת מִן הַחֲכָמִים כְּפוּפָה לְכַת הַמְרֻבִּים מִן הַשֹּׁרֶשׁ הַזֶּה, וּכְמוֹ שֶׁכָּתַבְתִּי שָׁם בְּמִצְוַת לְהַטּוֹת אַחֲרֵי רַבִּים.
It is from the root of the commandments [that it is] because (see Ramban on Deuteronomy 17:11) the opinions of people are different from one another — never will many intellects agree on things. And the Master of all, blessed be He, knew that if the intention of the verses of the Torah would be given over to the hand of each and every human being — each man, according to his intelligence — every one of them will explain the words of the Torah according to his [own] rationale; and disagreement about the meaning of the commandments would increase in Israel, and the Torah will become like several Torahs — like the matter that I wrote on the commandment of “to incline towards the many” in the Order of Mishpatim (Sefer HaChinukh 78). Hence our God, Who is the Master of all the wisdoms, made our Torah — the Torah of truth — perfect with this commandment; that we were commanded to act within [the Torah] according to the true understanding that was received by our early Sages, peace be upon them; and that we should listen to the sages present [now] that received their words, drank the words of their books, and exerted themselves with many exertions — day and night — to understand the depth of their words and the wonders of their opinions. And with this agreement, we will arrive at the true path in the knowledge of the Torah; and without it — if we are seduced after our thoughts and the poverty of our minds — we will not be successful at anything. And by way of the great truth and praise of this commandment, they, may their memory be blessed, said (Sifrei Devarim 154), “‘You shall not stray from [it] right or left’ — even if they say to you about right that it is left, do not stray from their commandments” — meaning to say that even if they err in one of the things, it is not fitting for us to differ with them. Rather, we should do like their mistake. And it is better to suffer one mistake, and everything be given over under their constant good opinion; and not that each and every one go according to his [own] opinion. As with [the latter], there would be destruction of the religion, dissent in the heart of the people and total loss of the nation. And because of these things, the intention of the Torah was given over to the sages of Israel. And from this root, they were also commanded that the small group of the sages is subordinate to the group of the numerous [sages], and as I wrote there about the commandment of “to incline towards the many.”
וְעַל דֶּרֶךְ עִנְיָן זֶה שֶׁעוֹרַרְתִּיךָ בְּנִי עָלָיו, אֲפָרֵשׁ לְךָ אַגָּדָה אַחַת שֶׁהִיא בְּבָבָא מְצִיעָא בְּסוֹף פֶּרֶק הַזָּהָב (בבא מציעא נט, ב) גַּבֵּי הַהוּא מַעֲשֶׂה דְּרַבִּי אֱלִיעֶזֶר הַגָּדוֹל בְּתַנּוּרוֹ שֶׁל עַכְנַאי, הַמַּתְמַהַת כָּל שׁוֹמְעָהּ. אָמְרוּ שָׁם אַשְׁכְּחֵהּ רַבִּי נָתָן לְאֵלִיָּהוּ וְכוּ' אֲמַר לֵהּ מַאי עָבֵד קֻדְשָׁא בְּרִיךְ הוּא בְּהַהִיא שַׁעְתָּא? אָמַר לָהּ חָיֵךְ וְאָמַר נִצְּחוּנִי בָּנַי, כְּלוֹמַר שֶׁהָיָה הַקָּדוֹשׁ בָּרוּךְ הוּא שָׂמֵחַ עַל שֶׁהָיוּ בָּנָיו הוֹלְכִים בְּדֶרֶךְ הַתּוֹרָה וּבְמִצְוָתָהּ לְהַטּוֹת אַחֲרֵי רַבִּים. וּמָה שֶׁאָמַר נִצְּחוּנִי בָּנַי, חָלִילָה לִהְיוֹת נִצָּחוֹן לְפָנָיו בָּרוּךְ הוּא, אֲבָל פֵּרוּשׁ הַדָּבָר הוּא עַל עִנְיָן זֶה, שֶׁבַּמַּחְלֹקֶת הַזֶּה שֶׁהָיְתָה לְרַבִּי אֱלִיעֶזֶר עִם חֲבֵרָיו הָאֱמֶת הָיְתָה כְּרַבִּי אֱלִיעֶזֶר וּכְדִבְרֵי הַבַּת קוֹל שֶׁהִכְרִיעָה כְּמוֹתוֹ, וְאַף עַל פִּי שֶׁהָיָה הָאֱמֶת אִתּוֹ בָּזֶה, בְּיִתְרוֹן פִּלְפּוּלוֹ עַל חֲבֵרָיו לֹא יָרְדוּ לְסוֹף דַּעְתּוֹ, וְלֹא רָצוּ לְהוֹדוֹת לִדְבָרָיו אֲפִלּוּ אַחַר בַּת קוֹל, וְהֵבִיאוּ רְאָיָה מִן הַדִּין הַקָּבוּעַ בַּתּוֹרָה שֶׁצִּוַּתְנוּ לָלֶכֶת אַחֲרֵי הָרַבִּים לְעוֹלָם, בֵּין יֹאמְרוּ אֱמֶת אוֹ אֲפִלּוּ טוֹעִים, וְעַל זֶה הֵשִׁיב הַבּוֹרֵא בָּרוּךְ הוּא נִצְּחוּנִי בָּנַי, כְּלוֹמַר, אַחַר שֶׁהֵם נוֹטִים מִדֶּרֶךְ הָאֱמֶת, שֶׁרַבִּי אֱלִיעֶזֶר הוּא הָיָה מְכַוֵּן בָּזֶה אֶת הָאֱמֶת, וְהֵם בָּאִים עָלָיו מִכֹּחַ מִצְוַת הַתּוֹרָה שֶׁצִּוִּיתִים לִשְׁמֹעַ אֶל הָרֹב לְעוֹלָם, אִם כֵּן עַל כָּל פָּנִים יֵשׁ לְהוֹדוֹת לָהֶם בַּפַּעַם הַזֹּאת כְּדִבְרֵיהֶם שֶׁתִּהְיֶה הָאֱמֶת נֶעְדֶּרֶת, וַהֲרֵי זֶה כְּאִלּוּ בַּעַל הָאֱמֶת נָצוּחַ.
By way of this idea that I have raised for you, my son — through it, will I explain to you a certain homelitical teaching, which is in the end of the chapter [entitled] HaZahav in Bava Metzia 59b, regarding the story of Rabbi Eliezer the Great and the “oven of Achnai,” which bewilders all who hear it. They said there, “Rabbi Natan met Eliyahu, etc. He said to him, ‘What did the Holy One, Blessed be He, do in that hour?’ He said to him, ‘He smiled and said, “My sons have vanquished Me...”’” — meaning that the Holy One, blessed be He, was happy that His sons were walking in the way of the Torah and its commandment, to incline towards the many. And that which He said, “My sons have vanquished Me,” God forbid that there is any victory before Him, blessed be He. Rather, the explanation about this idea is that in the debate of Rabbi Eliezer with his colleagues, the truth was with Rabbi Eliezer; and like the words of the heavenly voice (bat kol) that decided like him. But even though the truth was with him about this — because of his greater analysis over his colleagues — they could not completely fathom his opinion. And [so] they did not want to concede to him even after the heavenly voice; and they brought a proof from the law set in the Torah that commanded us to always go after the many — whether they say the truth or whether they are mistaken. And about this was the response of the Creator, blessed be He, “My sons have vanquished Me.” Meaning, since they turned away from the true path — for Rabbi Eliezer had surmised the truth about this — and they came upon him from the power of the Torah commandment that I commanded them to always listen to the majority; if so, one must nonetheless concede to them this time — like their words — that the truth be absent. And behold, it is as if the Master of truth was defeated.
מִדִּינֵי הַמִּצְוָה. מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (סנהדרין פז א) שֶׁאַף עַל פִּי שֶׁהָעוֹבֵר עַל מָה שֶׁפֵּרְשׁוּ חֲכָמִים בְּדִבְרֵי הַתּוֹרָה עוֹבֵר עַל לָאו זֶה דְּלֹא תָסוּר, מִכָּל מָקוֹם אֵין לוֹ לָאָדָם דִּין זָקֵן מַמְרֵא הַיָּדוּעַ בַּגְּמָרָא בְּסוֹף סַנְהֶדְרִין (פט א) שֶׁהוּא חַיָּב מִיתָה, עַד שֶׁיְּהֵא חוֹלֵק עַל בֵּית דִּין הַגָּדוֹל (עי' רמב"ם ממרים ג ה ז), וְשֶׁיְּהֵא הוּא חָכָם שֶׁהִגִּיעַ לְהוֹרָאָה סָמוּךְ לְסַנְהֶדְרִין, וְיַחְלֹק עֲלֵיהֶם בְּדָבָר שֶׁזְּדוֹנוֹ כָּרֵת וְשִׁגְגָתוֹ חַטָּאת, וּבֵין שֶׁהוּא מֵקֵל וְהֵם מַחְמִירִין אוֹ בְּהֶפֶךְ, וְיוֹרֶה לַעֲשׂוֹת כְּהוֹרָאָתוֹ אוֹ יַעֲשֶׂה הוּא מַעֲשֶׂה עַל פִּי הוֹרָאָתוֹ, שֶׁנֶּאֱמַר אֲשֶׁר יַעֲשֶׂה בְזָדוֹן וְלֹא שֶׁיּוֹרֶה לְבַד. אֲבָל אִם הָיָה תַּלְמִיד שֶׁלֹּא הִגִּיעַ לְהוֹרָאָה וְהוֹרָה פָּטוּר, שֶׁנֶּאֱמַר כִּי יִפָּלֵא מִמְּךָ דָבָר, מִי שֶׁלֹּא יִפָּלֵא מִמֶּנּוּ אֶלָּא דָּבָר מֻפְלָא. וְכֵן אִם מְצָאָן חוּץ לְלִשְׁכַּת הַגָּזִית וְהִמְרָה עֲלֵיהֶם פָּטוּר, שֶׁנֶּאֱמַר וְקַמְתָּ וְעָלִיתָ אֶל הַמָּקוֹם, מְלַמֵּד שֶׁהַמָּקוֹם גּוֹרֵם לוֹ מִיתָה.
From the laws of the commandment is that which they, may their memory be blessed, said (Sanhedrin 87a), that even though one who transgresses that which the Sages explained about the words of the Torah, transgresses this negative commandment of “you shall not stray”; nonetheless a man does not have the designation of a rebellious judge — known in the Gemara at the end of Sanhedrin 89a, who is liable for the death penalty — until he disagrees with the Great Court (see Mishneh Torah, Laws of Rebels 3:5, 7), and that he is a sage that has reached [the level] of pronouncing decisions [and] is ordained like the [members of the] Sanhedrin, and that he disagrees with them on a matter the volitional transgression of which [brings] excision and the inadvertent violation of which [brings] a sin-offering, and he instructs to do according to his decision or [himself] does the act according to his decision, as it is stated (Deuteronomy 17:12), “who wantonly does” — and not that he only instructs. But if he is a student that has not reached [the level] of pronouncing decisions, and makes a decision; he is exempt, as it is stated (Deuteronomy 17:8), “If a matter is baffling to you” — one who only a baffling thing is beyond him. And so [too,] if he found them outside of the Compartment of Paved Stone (in the Temple) and he rebelled against them, he is exempt, as it is stated, “and you will arise and go up to the place” — teaching that the place causes (is a requirement for) the death penalty.
וּבֵין שֶׁחָלַק עֲלֵיהֶם בְּדָבָר מַמָּשׁ שֶׁיֵּשׁ בִּזְדוֹנוֹ כָּרֵת (רמב"ם שם ד ב) אוֹ בְּדָבָר הַמֵּבִיא לִידֵי דָּבָר שֶׁחַיָּבִין עָלָיו כָּרֵת חַיָּב. כֵּיצַד בְּדָבָר שֶׁיֵּשׁ בִּזְדוֹנוֹ כָּרֵת? כְּגוֹן, שֶׁנֶּחְלְקוּ בְּאִשָּׁה אַחַת אִם הִיא עֶרְוָה אוֹ אֵינָהּ, אִם דָּם זֶה מְטַמֵּא אוֹ אֵינוֹ מְטַמֵּא, אִם אִשָּׁה זוֹ זָבָה אוֹ אֵינָהּ זָבָה, אִם חֵלֶב זֶה אָסוּר אוֹ מֻתָּר, וְכֵן כָּל כַּיּוֹצֵא בָּזֶה. וְכֵיצַד בְּדָבָר הַמֵּבִיא לִידֵי דָּבָר שֶׁיֵּשׁ בּוֹ חִיּוּב זֶה? כְּגוֹן שֶׁנֶּחְלְקוּ בְּעִבּוּר הַשָּׁנָה, שֶׁמֵּבִיא לִידֵי אֲכִילַת חָמֵץ בַּפֶּסַח, וְכֵן אִם נֶחְלְקוּ בְּדִין מִדִּינֵי מָמוֹנוֹת, שֶׁלְּדִבְרֵי הָאֶחָד כַּדִּין נָטַל זֶה מָמוֹן מֵחֲבֵרוֹ, וְאִם קִדֵּשׁ בּוֹ הָאִשָּׁה מְקֻדֶּשֶׁת, וְהַבָּא עָלֶיהָ בְּמֵזִיד עָנוּשׁ כָּרֵת, וּבְשׁוֹגֵג חַיָּב חַטָּאת, וּלְדִבְרֵי הָאַחֵר פָּטוּר. וְכֵן בְּכָל עִנְיָן שֶׁיֵּשׁ לְהוֹצִיא מָמוֹן כְּגוֹן חַיָּבֵי חֲרָמִים וַעֲרָכִים אִם חַיָּבִים לִתֵּן אוֹ אֵינָם חַיָּבִין, כָּל שֶׁלָּקְחוּ מֵהֶם גָּזֵל, וְאִם קִדֵּשׁ בּוֹ הָאִשָּׁה אֵינָהּ מְקֻדֶּשֶׁת, וְכֵן כָּל כַּיּוֹצֵא בָּזֶה. וַאֲפִלּוּ חָלְקוּ בְּדִינֵי מַכּוֹת חַיָּב עֲלֵיהֶם, שֶׁהֲרֵי לְדִבְרֵי הָאוֹמֵר אֵינוֹ חַיָּב מַלְקוּת בְּבֵית דִּין חַיָּבִים לְשַׁלֵּם לוֹ דְּמֵי חֶבְלוֹ וּבְדִין יִטֹּל מֵהֶם תַּשְׁלוּמָיו.
And the [law is like this], whether he disagrees about something that actually has excision for its volitional transgression (see Mishneh Torah, Laws of Rebels 4:2) or something that brings to something that has excision for its volitional transgression. What is an example of something that has excision for its volitional transgression? Such as: that they disagreed about whether a certain woman is [sexually forbidden to a man] or not; if a certain blood renders impure or does not render impure; if a certain woman is [in the category of impurity called] zavah or is not a zavah; if a certain fat is forbidden or not and all that is similar to this. What is an example of something that brings to something that has excision for its volitional transgression? Such as: that they disagreed about the intercalation of the year which [can] bring to the eating of chamets on Pesach; and so [too,] if they disagreed about a law in the monetary laws, such that according to one, the one took money from his fellow legally, and if he married a woman with it, she is married, and one [besides her husband] who has sexual relations with her volitionally is punished with excision, and when inadvertent, liable for a sin-offering, but according to the words of the other, he is exempt, and so [too,] in every matter in which money is to be extracted, such as those obligated by expropriations or evaluations, [the disagreement being about] whether they are liable to give [money] or not liable — that which they took from them [not according to the correct law] is theft, and if he marries a woman with it, she is not married; and so [too,] anything like this. And even if they disagreed about the laws of lashes, he is liable [to be a rebellious elder] as a result of them — as behold, according to the words of the one that [holds] he is not liable for lashes in court, they are obligated to pay the value of his injury, and he would legally take his payments from them.
וְכָתַב הָרַמְבַּ"ם זִכְרוֹנוֹ לִבְרָכָה (ממרים א, ב) בְּעִנְיָן לָאו זֶה דְּלֹא תָסוּר שֶׁאֶחָד דְּבָרִים שֶׁלָּמְדוּ אוֹתָם חֲכָמִים מִפִּי הַקַּבָּלָה, וְאֶחָד הַדְּבָרִים שֶׁלָּמְדוּ אוֹתָן בְּדַעְתָּן בְּאַחַת מִן הַמִּדּוֹת שֶׁהַתּוֹרָה נִדְרֶשֶׁת בָּהֶן, וְאֶחָד דְּבָרִים שֶׁנַּעֲשׂוּ סְיָג לַתּוֹרָה, וְהֵם: הַגְּזֵרוֹת וְהַתַּקָּנוֹת וְהַמִּנְהָגוֹת (עי' רש"י יומא עד א ד"ה ואליבא) בְּכָל אֶחָד מֵהַשְּׁלֹשָׁה דְּבָרִים אֵלּוּ מִצְוַת עֲשֵׂה לִשְׁמֹעַ לָהֶם, וְהָעוֹבֵר עַל כָּל אַחַת מֵהֶם עוֹבֵר בַּעֲשֵׂה וְלֹא תַעֲשֶׂה. וְהָרַמְבַּ"ן זִכְרוֹנוֹ לִבְרָכָה תָּפַשׂ עָלָיו הַרְבֵּה וְאָמַר (בספר המצוות בהשגתו שרש א), הִנֵּה סָבוּר הָרַב שֶׁיֵּשׁ בִּכְלַל לָאו דְּלֹא תָסוּר כָּל מָה שֶׁהוּא מִדִּבְרֵי חֲכָמִים, בֵּין שֶׁהֵן מִצְוֹת דְּרַבָּנָן, כְּגוֹן מִקְרָא מְגִלָּה וְנֵר חֲנֻכָּה, בֵּין שֶׁהֵן מִן הַתַּקָּנוֹת כְּגוֹן בְּשַׂר עוֹף בְּחָלָב וּשְׁנִיּוֹת לָעֲרָיוֹת, בֵּין שֶׁהֵן בְּקוּם עֲשֵׂה, כְּגוֹן שָׁלֹשׁ תְּפִלּוֹת בְּכָל יוֹם וּמֵאָה בְּרָכוֹת וְלוּלָב שִׁבְעָה בַּגְּבוּלִין, וּבֵין שֶׁהֵן בְּלֹא תַּעֲשֶׂה, כְּגוֹן, כָּל שֶׁהוּא מִשּׁוּם שְׁבוּת בְּשַׁבָּת וְיוֹם טוֹב, וְכֵן יוֹם טוֹב שֵׁנִי בַּגּוֹלָה וְתִשְׁעָה בְּאָב, וְדֶרֶךְ כְּלָל כָּל מָה שֶׁיֶּאֱסֹר אוֹתוֹ הַתַּלְמוּד אוֹ יְצַוֶּה עָלָיו. וְהִנֵּה הָרַב בּוֹנֶה חוֹמָה בְּצוּרָה סָבִיב לְדִבְרֵי חֲכָמִים, אֲבָל הִיא כְּפֶרֶץ נֹפֵל נִבְעֶה בְּחוֹמָה נִשְׂגָּבָה אֲשֶׁר פִּתְאֹם לְפֶתַע יָבֹא שִׁבְרָהּ, לְפִי שֶׁהִיא סְבָרָה נִפְסֶדֶת בְּרֹב מְקוֹמוֹת בַּתַּלְמוּד, כִּי הִנֵּה לְדַעְתּוֹ, הַמִּשְׁתַּמֵּשׁ בִּמְחֻבָּר כְּגוֹן הַנִּסְמָךְ עַל הָאִילָן בְּשַׁבָּת, אוֹ הַמְטַלְטֵל מֵחַמָּה לְצֵל, אוֹ שֶׁאָמַר לַגּוֹי וְעָשָׂה, אוֹ אֲפִלּוּ הַמַּפְסִיעַ פְּסִיעָה גַּסָּה בְּשַׁבָּת, עוֹבֵר הוּא עַל עֲשֵׂה וְלֹא תַעֲשֶׂה מִן הַתּוֹרָה וְרָאוּי הוּא לִלְקוֹת אַרְבָּעִים, אֶלָּא שֶׁפְּטָרוֹ הָרַב שָׁם בְּסֵפֶר שׁוֹפְטִים, מִפְּנֵי שֶׁנִּתַּן לְאַזְהָרַת מִיתַת בֵּית דִּין, שֶׁכָּל חָכָם שֶׁמַּמְרֶה עַל דִּבְרֵיהֶם מִיתָתוֹ בְּחֶנֶק. וְהִנֵּה לִדְבָרָיו לוֹקֶה הוּא לְדַעַת הָאוֹמֵר בַּתַּלְמוּד לָאו שֶׁנִּתַּן לְאַזְהָרַת מִיתַת בֵּית דִין לוֹקִין עָלָיו, כְּמוֹ שֶׁהֻזְכַּר בְּפֶרֶק מִי שֶׁהֶחְשִׁיךְ (שבת קנד, ב). וְרָאוּי לְפִי הַדַּעַת הַזֹּאת לְהַחְמִיר מְאֹד בְּדִבְרֵי סוֹפְרִים שֶׁכֻּלָּם תּוֹרָה הֵם, אֵין בֵּינֵיהֶם וּבֵין הַמִּצְוֹת הַמְפֹרָשׁוֹת בַּכָּתוּב שׁוּם הֶפְרֵשׁ, וְאֵין בַּתּוֹרָה דָּבָר חָמוּר מִן הַשְּׁבוּת שֶׁהוּא מִדִּבְרֵיהֶם אֶלָּא מָה שֶׁיֵּשׁ בָּהּ חִיּוּב כָּרֵת אוֹ מִיתַת בֵּית דִּין, אֲבָל לֹא כָּל שֶׁיֵּשׁ בָּהּ חִיּוּב עֲשֵׂה אוֹ לָאו, שֶׁהֲרֵי בְּכָל דִּבְרֵיהֶם לְדַעְתּוֹ יֵשׁ חִיּוּב עֲשֵׂה וְלָאו, עֲשֵׂה דִּוְעָשִׂיתָ עַל פִּי הַדָּבָר אֲשֶׁר יַגִּידוּ לְךָ, וְלָאו דְּלֹא תָסוּר.
And Rambam, may his memory be blessed, wrote about the matter of this negative commandment of “you shall not stray” (Mishneh Torah, Laws of Rebels 1:2) that it is one whether they are things that the Sages learned from the received tradition, or things they learned from their intellects through one of the methods through which the Torah is expounded or things done to make a fence for the Torah — and they are the decrees, the ordinances and the practices (see Rashi on Yoma 74a, s.v. ve’aliba) — in each one of these three things, it is a positive commandment to listen to them; and the one who transgresses any one of them transgresses a positive commandment and a negative commandment. And Ramban, may his memory be blessed, greatly took a hold upon him [about this] and said (in the Sefer HaMitzvot in his gloss on Shoresh 1): Behold, the rabbi holds that included in the negative commandment of “you shall not stray” is everything that is from the words of the Rabbis — whether it is a rabbinic commandment such as the reading of the Scroll [of Esther] or the Channukah light, or whether it is from the ordinances such as poultry meat with milk and the secondary sexual prohibitions; whether they are active positive, such as three prayers every day or a hundred blessings and lulav on [all] seven [days] in the borders (outside of the Temple); or they are negative, such as anything that is because of a rabbinic Shabbat prohibition on Shabbat and holidays, and so [too,] the second day of a holiday in the Diaspora and the [fast of the] Ninth of Av; and more generally, anything that the Talmud forbids or commands about. And behold, the rabbi builds a fortified wall around the words of the Sages, but it is “like a spreading breach that occurs in a lofty wall, whose breaking comes sudden and swift”; as it is a rationale [that is found] wanting in many places in the Talmud. As behold, according to his opinion, one who uses what is connected to the ground on Shabbat, such as one who leans on a tree, or one who moves something from the sun to the shade or says to a gentile [to do work] and he does it or even if he takes a large step on Shabbat, he transgresses [both] a positive commandment and a negative commandment from the Torah, and he is fit to be lashed forty [lashes]. But the rabbi exempts him in the Book of Judges (Mishneh Torah, The Sanhedrin and the Penalties within Their Jurisdiction 18:2), because it is given to the warning of a death penalty by the court — as the death penalty of anyone who rebels against their words is with strangulation. And behold, according to his words, he should be lashed according to the opinion in the Talmud that says that we administer lashes for a negative commandment that is subject to the warning of a death penalty by the court — as is mentioned in the chapter [entitled] Mi Shehichshikh (Shabbat 154b). And according to that opinion, it is fitting to be very stringent in rabbinic laws, as they are all [from the] Torah. There is no difference at all between them and between the commandments explicit in the Scripture; and there [would] be nothing in the Torah more weighty than a rabbinic Shabbat prohibition which is of their words, except that which has a liability of excision or the death penalty by the court — but not anything that has the obligation of a positive commandment or a negative commandment. As behold, according to his opinion, there is the obligation of a positive commandment and a negative commandment in all of their words — the positive commandment of “And you shall act according to the thing that they tell you,” and the negative commandment of “you shall not stray.”
וְהִנֵּה נִרְאֶה לְרַבּוֹתֵינוּ בְּכָל הַגְּמָרָא אוֹמְרִים הֶפֶךְ מִזֶּה, שֶׁהֲרֵי הֵם דָּנִים כָּל דִּבְרֵי סוֹפְרִים לְהָקֵל, כְּמוֹ שֶׁיֹּאמְרוּ תָּמִיד (ביצה ג ב) סְפֵקָא דְּאוֹרָיְתָא לְחֻמְרָא, סְפֵקָא דְּרַבָּנָן לְקֻלָּא, וְהֵקֵלּוּ בַּחֲשַׁשׁ אִסּוּרִין שֶׁל דִּבְרֵיהֶם לוֹמַר בָּהֶם שֶׁאֲנִי אוֹמֵר. וְאָמְרוּ בְּפֶרֶק רִאשׁוֹן מִפְּסָחִים (ט ב) אֵמוּר דְּאָמְרִינַן שֶׁאֲנִי אוֹמֵר בִּדְרַבָּנָן, בִּדְאוֹרָיְתָא מִי אָמְרִינַן שֶׁאֲנִי אוֹמֵר? וְהֶאֱמִינוּ הַקְּטַנִּים שֶׁאֵינָם רְאוּיִים לְהָעִיד בְּמָה שֶׁהוּא מִדְּרַבָּנָן, כְּמוֹ שֶׁאָמְרוּ שָׁם (ד ב) בְּדִיקַת חָמֵץ דְּרַבָּנָן, וְהֵימְנִינְהוּ רַבָּנָן בִּדְרַבָּנָן. וְכֵן בְּעִנְיַן תְּחוּמִין נֶאֱמָן הַקָּטָן לוֹמַר עַד כָּאן תְּחוּם שַׁבָּת, קָסָבַר תְּחוּמִין דְּרַבָּנָן, וְהֵימְנִינְהוּ רַבָּנָן בִּדְרַבָּנָן, כִּדְאִיתָא בְּעֵרוּבִין (נח ב) וּבִכְתֻבּוֹת (כח ב). וְעוֹד הֵקֵלּוּ בִּדְרַבָּנָן כְּמוֹ כֵן בִּסְפֵקוֹת, כְּמוֹ שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (ברכות כא, א) סָפֵק הִתְפַּלֵּל סָפֵק לֹא הִתְפַּלֵּל אֵינוֹ חוֹזֵר וּמִתְפַּלֵּל, סָפֵק אָמַר אֱמֶת וְיַצִּיב סָפֵק לֹא אָמַר חוֹזֵר, וְאָמְרוּ מַאי טַעְמָא? תְּפִלָּה דְּרַבָּנָן, אֱמֶת וְיַצִּיב דְּאוֹרָיְתָא, וְלֹא עוֹד אֶלָּא אֲפִלּוּ בִּדְבָרִים הַסּוֹתְרִין זֶה אֶת זֶה הֵקֵלּוּ, כְּמוֹ שֶׁאָמְרוּ בְּפֶרֶק בַּמֶּה מַדְלִיקִין (שבת לד, א) אָמְרוּ לוֹ שְׁנַיִם צֵא וְעָרֵב עָלֵינוּ, אֶחָד עֵרֵב עָלָיו מִבְּעוֹד יוֹם וְכוּ', כְּמוֹ שֶׁבָּא לְשָׁם. וְגַם נִרְאֶה בַּגְּמָרָא, שֶׁעוֹקְרִין דִּבְרֵיהֶם תָּדִיר מִשּׁוּם אִסּוּר דְּאוֹרָיְתָא, כְּמוֹ שֶׁאָמְרוּ בְּמַסֶּכֶת שַׁבָּת (ד א), הִדְבִּיק פַּת בַּתַּנּוּר הִתִּירוּ לוֹ לִרְדּוֹתָהּ קֹדֶם שֶׁיָּבוֹא לִידֵי אִסּוּר סְקִילָה. וְשָׁם בְּשַׁבָּת (קכח ב) אָמְרוּ, בִּטּוּל כְּלִי מֵהֲכֵנוֹ דְּרַבָּנָן, וְצַעַר בַּעֲלֵי חַיִּים דְּאוֹרָיְתָא, וְאָתֵי דְּאוֹרָיְתָא וּמְבַטֵּל דְּרַבָּנָן וְכוּ', כְּמוֹ שֶׁבָּא לְשָׁם, וְזֶה רַב מְאֹד בַּתַּלְמוּד אָתֵי עֲשֵׂה דְּאוֹרָיְתָא וְדָחֵי עֲשֵׂה דְּרַבָּנָן. וְכֵן בְּמַחְלֹקֶת שֶׁתָּבוֹא בֵּין הַחֲכָמִים אָמְרוּ (ע"ז ז, א) אִם הָיָה אֶחָד גָּדוֹל בְּחָכְמָה וּבְמִנְיָן הַלֵּךְ אַחֲרָיו, וְאִם לָאו בְּשֶׁל תּוֹרָה, הַלֵּךְ אַחַר הַמַּחְמִיר, וּבְשֶׁל סוֹפְרִים אַחַר הַמֵּקֵל, וּגְדוֹלָה מִזֶּה אָמְרוּ (ערובין סז, ב) בְּשֶׁל סוֹפְרִים עוֹשִׂין מַעֲשֶׂה וְאַחַר כָּךְ דָּנִין. וּבְפֶרֶק מִי שֶׁהֶחְשִׁיךְ (שבת קנד, ב) אָמְרוּ מַהוּ דְּתֵימָא לְהֶפְסֵד מוּעָט נָמֵי חָשְׁשׁוּ קָא מַשְׁמַע לַן, שֶׁהֲרֵי חִדּוּשׁ הוּא אֶצְלָם כְּשֶׁאֵינָן דּוֹחִין דִּבְרֵי סוֹפְרִים אֲפִלּוּ לְהֶפְסֵד מוּעָט. וְאָמְרוּ (ברכות יט, ב) שֶׁמְּטַמְּאִין כֹּהֲנִים עַצְמָם בְּטֻמְאָה שֶׁל דִּבְרֵיהֶם לִרְאוֹת מַלְכֵי אֻמּוֹת הָעוֹלָם כְּדֵי שֶׁאִם יִזְכֶּה יַבְחִין מָה בֵּין מַלְכֵי יִשְׂרָאֵל וְגוֹ'. וְאַף בְּעָנְשָׁן שֶׁל דִּבְרֵי חֲכָמִים אֵין לָהֶם אֶלָּא נִדּוּי, כְּמוֹ שֶׁאָמְרוּ (פסחים נב, א) מְנַדִּין עַל שְׁנֵי יָמִים טוֹבִים שֶׁל גָּלִיּוֹת. וְאָמְרוּ בָּעֹשֶׂה מְלָאכָה בְּפוּרִים וְלִשַׁמְּתֵהּ מָר. וּבִמְקוֹמוֹת יֵשׁ לָהֶם מַכַּת מַרְדּוּת, וְהוּא לְמִי שֶׁעוֹבֵר עַל דִּבְרֵיהֶם שֶׁהֵן כְּעֵין תּוֹרָה, וְהֵן כָּל הַגְּזֵרוֹת שֶׁגָּזְרוּ בָּהֶם מִדִּבְרֵיהֶם, שֶׁמַּכִּין אוֹתוֹ עַד שֶׁיְּקַבֵּל אוֹתָהּ עָלָיו אוֹ עַד שֶׁתֵּצֵא נַפְשׁוֹ, כְּמוֹ שֶׁמְּפֹרָשׁ בַּתּוֹסֶפְתָּא דְּסַנְהֶדְרִין. כְּלָלוֹ שֶׁל דָּבָר שֶׁדִּבְרֵי סוֹפְרִים חֲלוּקִים הֵם בְּכָל דִּינֵיהֶם מִדִּבְרֵי תוֹרָה, לְהָקֵל בִּקְצָתָן וּלְהַחְמִיר בִּקְצָתָן. אֲבָל הַדָּבָר הַבָּרוּר הַמְּנֻקֶּה מִכָּל שִׁבּוּשׁ הוּא שֶׁאֵין הַלָּאו הַזֶּה דְּלֹא תָסוּר אֶלָּא בַּמֶּה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּפֵרוּשׁ הַתּוֹרָה, כְּגוֹן הַדְּבָרִים הַנִּדְרָשִׁים בִּגְזֵרָה שָׁוָה אוֹ בְּבִנְיַן אָב וּשְׁאָר שְׁלֹשׁ עֶשְׂרֵה מִדּוֹת שֶׁהַתּוֹרָה נִדְרֶשֶׁת בָּהֶם אוֹ בְּמַשְׁמָעוּת לְשׁוֹן הַכָּתוּב עַצְמוֹ, וְכֵן בַּמֶּה שֶׁקִּבְּלוּ הֲלָכָה לְמֹשֶׁה מִסִּינַי, וְעַל זֶה יֹאמְרוּ זִכְרוֹנָם לִבְרָכָה שֶׁיֵּשׁ עֲשֵׂה וְלֹא תַעֲשֶׂה בַּדָּבָר, וְאִם בָּעִנְיָן הַזֶּה נֶחְלַק אֶחָד הָרָאוּי לְהוֹרָאָה בַּמֶּה שֶׁיֵּשׁ עַל זְדוֹנוֹ כָּרֵת וּבְשִׁגְגָתוֹ חַטָּאת עַל בֵּית דִּין הַגָּדוֹל שֶׁנַּעֲשָׂה בָּהֶם זָקֵן מַמְרֵא בִּזְמַן שֶׁנָּדִין בְּדִינֵי נְפָשׁוֹת, וְזֶהוּ אָמְרָם זִכְרוֹנָם לִבְרָכָה (ספרי כאן) אֲפִלּוּ יֹאמְרוּ לְךָ עַל שְׂמֹאל שֶׁהִיא יָמִין, כְּלוֹמַר, שֶׁכָּךְ הִיא הַמִּצְוָה לָנוּ מֵאֲדוֹן הַתּוֹרָה יִתְבָּרַךְ שֶׁנַּאֲמִין אֶל הַגְּדוֹלִים בַּמֶּה שֶׁיֹּאמְרוּ, וְלֹא יֹאמַר בַּעַל הַמַּחְלֹקֶת הֵיאַךְ אַתִּיר לְעַצְמִי, וַאֲנִי יוֹדֵעַ בְּוַדַּאי שֶׁהֵם הַטּוֹעִים? שֶׁאֲפִלּוּ יִהְיֶה כֵּן הוּא מְצֻוֶּה לְהַאֲמִין לָהֶם, וּכְמוֹ שֶׁכָּתַבְתִּי לְמַעְלָה בְּרֹאשׁ הַמִּצְוָה, וּכְעִנְיָן שֶׁנָּהַג רַבָּן גַּמְלִיאֵל עִם רַבִּי יְהוֹשֻׁעַ בְּיוֹם הַכִּפּוּרִים שֶׁחָל לִהְיוֹת בְּחֶשְׁבּוֹנוֹ, כְּמוֹ שֶׁמֻּזְכָּר בְּמַסֶּכֶת רֹאשׁ הַשָּׁנָה (כה א).
And behold it is seen that our Rabbis in all of the Gemara say the opposite of this. As behold, they determine all rabbinic cases leniently, as they always say (Beitzah 3b), “A doubt of Torah [law] is to be [ruled] stringent and a doubt of rabbinic [law] is to be [ruled] lenient. And they were lenient regarding a concern of rabbinically forbidden [products being present in a certain food], to say, “As I say” (that we can assume that it is not present). And they said in the first chapter of Pesachim 9b, “I will say that we say, ‘As I say,’ in a rabbinic [law]; in a Torah [law], can we say, ‘As I say?’” And they relied upon minors who are not fit to testify, to testify on that which is rabbinic, as they said (Pesachim 4b), “The checking for chamets is rabbinic, and the Rabbis relied upon them in rabbinic [laws].” And so [too,] regarding perimeters, a minor is believed to say, “The perimeter of Shabbat is to here,” [as they] “held that perimeters are rabbinic, and the Rabbis were lenient in the rabbinic,” as it is found in Eruvin 58b and in Ketuvot 28b. And they were also likewise lenient in the rabbinic with doubts, as they, may their memory be blessed, said (Berakhot 21a), “[If] there is a doubt if he prayed or if he did not pray, he does not go back and pray; [if] there is a doubt if he said, ‘True and solid’ or he did not say it, he goes back” — and they said, “What is the reason? Prayer is rabbinic; ‘True and solid’ is from the Torah.” And not only that, but they were even lenient about things that contradict each other in rabbinic [law] — as they said in the chapter [entitled] Bameh Madlikin (Shabbat 34a), “[If] two [people] said to him, ‘Go out and make an eruv for us’; he made an eruv for one while it was still day, etc.,” as it appears there. And it is also seen in the Gemara that we constantly uproot their words on account of a Torah prohibition; as they said in Tractate Shabbat 4a, “If he stuck bread onto an oven [wall], they permitted him to scrape it off before he comes to a prohibition [that is punished with] stoning.” And there in Shabbat 128b they said, “Negating a vessel from its preparedness is rabbinic, but [causing] the pain of animals is [from] the Torah, and a positive commandment [from] the Torah comes and negates a positive commandment [from] the Rabbis,” as it appears there. And this is [something seen] very much in the Talmud — a positive commandment [from] the Torah comes and pushes off a positive commandment [from] the Rabbis. And so [too] with a disagreement among the Sages, they said (Avodah Zarah 7a), “If one [group] was greater in wisdom, follow it; and if not, follow the stringent [one] in that of the Torah, and the lenient in that of the [Rabbis].” And even greater than this, they said (Eruvin 67b), “In that of the [Rabbis,] we first do the act, and then we deliberate.” And in the chapter [entitled], Mi Shehichshikh (Shabbat 154b), they said, “What is it that you would say? They were also concerned with a small loss. Hence, it makes us hear” — as it is a novelty with them when they do not push off the words of the [Rabbis], even for a small loss. And they said (Berakhot 19b) that priests can render themselves impure with rabbinic impurity to see kings of the nations of the world; so that if they merit [it], they will differentiate that [which separates] the kings of Israel, etc. And also regarding the punishments of the words of the [Rabbis], they only have excommunication, as they said (Pesachim 52), “We excommunicate for the two days of holiday in the Diaspora.” And they said about one who does work on Purim, “Let the master excommunicate him.” And in [some] places, they have lashes of rebellion, and that is for one that transgress their words that are similar to [commandments] of the Torah — and those are all the decrees that they decreed from their [own] words — that they lash him until he accepts it upon him or until his soul departs, as is explained in the Tosefta of Sanhedrin. The general rule of the matter is that the words of the [Rabbis] are different in all of their laws from the words of the Torah, that [the one tends] towards leniency, and [the other] towards stringency. But the thing that is clear and clean of any confusion is that this negative commandment of “you shall not stray” is only in that which they, may their memory be blessed, said in explanation of the Torah — such as things that are expounded through a gezerah shava or a binyan av or the rest of the thirteen methods through which the Torah is expounded; or about the meaning of the language of the verse itself — and so [too] regarding that which they received as a law of Moshe from Sinai. And it is about this that they, may their memory be blessed, said that there is a positive commandment and a negative commandment in the thing. And if in this matter, one fitting to pronounce decisions disagrees with the Great Court about that which the volitional transgression [brings] excision and the inadvertent violation [brings] a sin-offering, he becomes a rebellious elder through them — at a time when we judge capital cases. And this is [the meaning of] that which they, may their memory be blessed, said (Sifrei Devarim 154), “Even if they tell you about the left that it is right”; meaning to say that this is the commandment upon us from the Master of the Torah, may He be blessed — that we believe the greats regarding what they say, and that the one who disagrees not say, “How can I permit it for myself, since I know with certainty that they are mistaken?” As even if it will be such, it is a commandment to listen to them — as I wrote above at the beginning of the commandment — and like the matter that Rabban Gamliel conducted with Rabbi Yehoshua on Yom Kippur that fell out according to [the latter’s] calculation, as is mentioned in Rosh Hashanah 25a.
וְיֵשׁ בָּעִנְיָן הַזֶּה תְּנַאי אֶחָד לְפִי מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּמַסֶּכֶת הוֹרָיוֹת (ב, ב), שֶׁאִם הָיָה בִּזְמַן הַסַּנְהֶדְרִין אִישׁ חָכָם וְרָאוּי לְהוֹרוֹת אוֹ שֶׁהוּא מִכְּלַל הַסַּנְהֶדְרִין, וְהוֹרוּ בֵּית דִּין הַגָּדוֹל בְּדָבָר שֶׁלֹּא כְּדַעְתּוֹ, שֶׁאֵינוֹ רַשַּׁאי לְהַתִּיר עַצְמוֹ בְּאוֹתוֹ הַדָּבָר הָאָסוּר לְדַעְתּוֹ עַד שֶׁיִּשָּׂא וְיִתֵּן עִמָּהֶם עַל הַדָּבָר, וְאַחַר שֶׁיַּסְכִּימוּ כֻּלָּם אוֹ רֻבָּם בְּבִטּוּל הַדַּעַת הַהוּא, וִישַׁבְּשׁוּ עָלָיו סְבָרָתוֹ, וְיַעֲשׂוּ הַסְכָּמָה שֶׁהוּא טוֹעֶה, אָז הוּא רַשַּׁאי לִנְהֹג לְעַצְמוֹ הֶתֵּר בַּמֶּה שֶׁהָיָה דַּעְתּוֹ לֶאֱסֹר, וְגַם מְצֻוֶּה הוּא עַל זֶה לְקַבֵּל דַּעְתָּם עַל כָּל פָּנִים. אֲבָל הַתַּקָּנוֹת וְהַגְּזֵרוֹת שֶׁעָשׂוּ חֲכָמִים לְמִשְׁמֶרֶת הַתּוֹרָה וּלְגָדֵר שֶׁלָּהּ אֵין לָהֶם בְּלָאו זֶה אֶלָּא סֶמֶךְ בְּעָלְמָא, וְאֵין בָּהֶם דִּין הַמְרָאָה כְּלָל. וְיֶתֶר פְּרָטֵי הַמִּצְוָה, מְבֹאָרִים בְּסוֹף סַנְהֶדְרִין (פרק הנחנקין).
And there is one condition about this law according to that which they, may their memory be blessed, said in Tractate Horayot 2b, that if at the time of the Sanhedrin, there was a wise man who was fitting to pronounce decisions or was part of the Sanhedrin, and the Great Court decided not like his opinion, he is not allowed to permit himself the matter that is forbidden according to his opinion, until he gives and takes (discusses) with them about the thing, and after they all — or their majority — agree to the negation of that opinion, confound his rationale against him and come to the conclusion that he is mistaken; [only] then is he allowed to act for himself according to the permissibility about that which it was his opinion to forbid — and it is also a commandment upon this one to accept their opinion regardless. But with the ordinances and the decrees that the Sages made as a protection of the Torah and as its fence, this negative commandment is only a [recommendation], and there is no law of rebellion about them at all. And the rest of the details of the commandment are elucidated at the end of Sanhedrin ([in the] chapter [entitled] HaNechenakin).
וְנוֹהֶגֶת מִצְוָה זוֹ לְעִנְיַן זָקֵן מַמְרֵא בִּזְמַן הַבַּיִת, וּלְעִנְיַן הַחִיּוּב עָלֵינוּ לִשְׁמֹעַ לְדִבְרֵי חֲכָמֵינוּ הַקַּדְמוֹנִים וְאֶל גְּדוֹלֵינוּ בְּחָכְמַת הַתּוֹרָה וְשׁוֹפְטֵינוּ שֶׁבְּדוֹרֵנוּ נוֹהֶגֶת בְּכָל מָקוֹם וּבְכָל זְמַן בִּזְכָרִים וּנְקֵבוֹת. וְהָעוֹבֵר עַל זֶה וּפוֹרֵץ גָּדֵר בְּדָבָר אֶחָד מִכָּל מָה שֶׁלִּמְּדוּנוּ רַבּוֹתֵינוּ בְּפֵרוּשׁ הַתּוֹרָה, כְּגוֹן בְּאַחַת מִשְּׁלֹשׁ עֶשְׂרֵה מִדּוֹת אוֹ בְּדָבָר שֶׁהוּא אָסוּר מֵהֲלָכָה לְמֹשֶׁה מִסִּינַי, וּכְעִנְיָן שֶׁכָּתַבְנוּ בְּסָמוּךְ, עָבַר עַל לָאו זֶה מִלְּבַד שֶׁבִּטֵּל עֲשֵׂה שֶׁבּוֹ, אֲבָל אֵין לוֹקִין עַל לָאו זֶה, לְפִי שֶׁנִּתַּן לְאַזְהָרַת מִיתַת בֵּית דִּין בְּזָקֵן מַמְרֵא, וּכְמוֹ שֶׁכָּתַבְנוּ.
And this commandment is practiced concerning the matter of the rebellious elder at the time of the [Temple]. And concerning the matter to listen to the words of our ancient Sages and to our greats in the wisdom of the Torah and to our judges in our generation, it is practiced in all places and at all times by males and females. And one who transgresses this and “breaches a fence” in one of all of that which our Rabbis taught us in explanation of the Torah — such as through one of the thirteen methods or something forbidden from a law of Moshe from Sinai, and like the matter that we wrote adjacently — has violated this negative commandment, besides violating the positive commandment in it. But we do not administer lashes for it, since it is subject to the warning of a death penalty by the court with the law of the rebellious elder, and as we wrote.