Rambam, Hilchos Mamrim Chapter 2 

Chapter 2: Legislation rules for the Supreme Court

Halacha 1: Judicial precedents-Overturning biblical legislation of a previous court

• A later supreme court has the power to overturn a biblical law that was passed by a previous Supreme Court based on one of the rules of expounding the Torah.
• The reason for this is because the Torah only obligated the Jewish people to listen to the court of their generation [and not of a previous generation].

Halacha 2: Abolishing a rabbinical decree of a previous court

• A later supreme court only has the power to overturn a rabbinical institution or decree that was passed by a previous Supreme Court and has become accepted amongst all the Jewish people, if they are greater in number and wiser than the previous court.
• If the current Supreme Court is not greater in number than the previous court or not greater in wisdom, then they do not hold the power to abolish the decree.
• This applies even if the reason behind the decree is no longer relevant, nonetheless, it cannot be abolished unless the above conditions are fulfilled.
• Definition of greater in number: Every Supreme Court can only have 71 judges, and hence the intent of the condition that the current Supreme Court must be greater in number in order to abolish a decree of a previous Supreme Court refers to the sages of that generation who accept the ruling. Thus, if there are more sages who accept the abolishing of the decree than those who accepted the decree at the time that it was made, then it may be abolished.

Halacha 3: Overturning decrees made due to worry of biblical transgression

• A later supreme court only has the power to overturn a rabbinical institution or decree that was passed by a previous Supreme Court if the decree was not made in order to prevent transgression of biblical prohibitions. If, however, the reason for the decree is in order to prevent biblical transgression, then if this decree became accepted amongst all Israel, then a later Supreme Court can never abolish it, even if they are greater then the first one.

Halacha 4: Temporarily waving decrees and prohibitions

• A rabbinical decree: A supreme court has the power to temporarily waive a rabbinical institution or decree.
• This applies even if the decree was made to protect against transgression of a biblical prohibition and became accepted amongst all the Jewish people.
• This applies even if the current Supreme Court is smaller than the one who originally made the decree.
• Biblical law: Furthermore, even biblical prohibitions may be temporarily waived by the Supreme Court if they deem it necessary for the times, in order to strengthen the religion, or to save the Jewish people from transgressing other more severe sins.
• This allowance to temporarily waive even biblical law applies to both positive commands and negative commands.
• This allowance is similar to the allowance for a doctor to amputate a limb for the sake of saving the rest of body, and is similar to the law that one may transgress Shabbos to save a life in order so he can then keep many more Shabbosim.
• Criminal justice reform-Punishing for offenses without a biblical mandate: For example, if a Supreme Court sees it necessary for their generation, they may choose to punish a transgressor of biblical law even in ways that the person is not biblically liable for.
• However this is limited to their generation and they cannot pass new laws giving new punishments for sins not mandated in the Torah.

Halacha 5: Not to pass decrees that majority of the community will not be able to uphold

• The Supreme Court may only enact rabbinical decrees, institutions and customs after they have researched the subject and found that the majority of the Jewish people will be able to uphold it. If in their estimation the majority of the Jewish people may not be able to uphold it, then the decree is not made.

Halacha 6: The law if a decree was passed and is not being kept by the people

• If the Supreme Court passed rabbinical legislation which they thought that majority of the Jewish people would uphold and in the end it became revealed that they are not upholding the decree, then if majority of the Jewish people are not abiding to it, then the decree is abolished and the Supreme Court cannot enforce it as law.

Halacha 7: The law if the lack of adherence to the decree was only discovered in a later generation

• If a Supreme Court passed rabbinical legislation which they believed was upheld by majority of the Jewish people, and a later Supreme Court which researched the subject discovered that it was not upheld by the Jewish people, then the current Supreme Court may abolish this decree.
• They have the power to abolish the decree even if they are smaller in wisdom and number than the first Supreme Court who enacted it.

Halacha 8: Not to uproot more than two decrees

• If a Supreme Court has already abolish two decrees of a previous court, then they should not hurry to abolish a third decree.

Halacha 9: Not to add or diminish from the Torah

• Although a Supreme Court has the power to enact new decrees and make new prohibitions for all future generations, and as well has the power to temporarily waive even biblical prohibitions, they do not have the power to etrnally add or diminish to and from the Torah’s laws. This means, they can only enact a rabbinical decree, and can only temporarily waive a biblical law, however, they may never add to the actual biblical law or subtract from the actual biblical law for eternity.
• Subtracting-Wild meat with milk: For example, if they would say that it is permitted to eat wild meat with milk, then they would transgress the “do not subtract” prohibition
• Adding-Chicken with milk: For example, although they can decree that one may not eat chicken with milk as he may come to eat meat with milk, if they say that the Torah itself prohibits eating chicken with milk, then they would transgress the “do not add” prohibition.
• Thus, when the Supreme Court makes a new decree they must publicize to the nation that it is merely rabbinical, in order so they do not come to add to the Torah.