This column is dedicated to the refuah sheleimah of Shlomo Eliezer ben Chaya Sarah Elka.
There is a famous pasuk in one of this week’s parshiyos, Parshas Nitzavim, which carries strong halachic ramifications.
The pasuk says, “Lo bashamayim hee – the Torah is not in the heavens.” The Gemara in Baba Metzia 59a-b cites a dispute between Rabi Eliezer and the Chachamim regarding the tumah status of an achinai oven. The Gemara says that Rabi Eliezer brought all of the proofs in the world, but the Chachamim did not accept his opinion. Rabi Eliezer then said that if the halacha is indeed like his view, this carob tree should indicate that to us.
Just then the carob tree uprooted and moved either 100 amos or 400 amos. To which the Chachamim responded that one cannot bring a proof from a carob tree. Rabi Eliezer then responded that if the halacha is in accordance with his opinion, the water would prove it. Just then the stream of water began flowing in the opposite direction. The Chachamim responded that this too couldn’t serve as a proof.
Rabi Eliezer then said that the walls of the beis medrash should serve as proof that the halacha is in accordance with his view. Just then the walls of the beis medrash began shaking and nearly fell, until Rabi Yehoshua told the walls that they should not get involved in a dispute among talmidei chachamim. The walls did not fall out of kavod for Rabi Yehoshua, but did not stand erect out of kavod for Rabi Eliezer; rather they remained in their shaken position. Rabi Eliezer then said that the shamayim would prove that the halacha is in accordance with his judgment.
Just then a bas kol asked, “Why are you bothering Rabi Eliezer when the halacha is in accordance with his view in every dispute?” Rabi Yehoshua stood up, saying, “The Torah is not in shamayim.” The Gemara explains that since the Torah was given on Har Sinai, we no longer must listen to what a bas kol says regarding the determination of the halacha. The Torah says that the halacha follows the majority opinion. In this case the Chachamim are the majority – so the halacha should follow them.
Shortly after, Rabi Nosson asked Eliyahu HaNavi what Hashem was doing right then. Eliyahu HaNavi answered that Hashem was smiling and saying, “You have won me over, my son.”
Tosafos there asks about the Gemara in Yevamos 14a that says that the halacha follows Beis Hillel because a bas kol said that the halacha follows them over Beis Shamai. This seems to directly contradict the drasha that the Gemara in Baba Metzia (see above) made from the pasuk in this week’s parshah. Tosafos answers that there is a simple difference. The bas kol in the Gemara in Baba Metzia instructed us to do something that was against the Torah, namely to not follow the majority opinion. However, the bas kol in the Gemara in Yevamos instructed us to follow the Torah; therefore, we listened to that bas kol from shamayim. The reason for the uncertainty is because Beis Shamai was sharper than Beis Hillel. But Beis Hillel was the majority. Tosafos suggests another answer: the bas kol in the Gemara in Baba Metzia only came out of honor for Rabi Eliezer.
According to Tosafos’s second answer, we would generally follow a bas kol if we knew that it was not said out of kavod for someone. According to Tosafos’s first answer, a bas kol can determine who the halacha follows if it does not contradict a law in the Torah.
The Rambam (Hilchos Yesodei HaTorah 9:3) says that we derive from the pasuk that tells us that the Torah is not in the shamayim any longer that if a navi proclaims that Hashem has told him to add a mitzvah, change one in any form, explain a mitzvah in a new manner, or say who the halacha follows, he is a navi sheker and should be put to death by chenek. This applies even if he performs a sign from heaven. The Kesef Mishnah there questions how we could have listened to the bas kol that said that we should follow Beis Hillel if the Torah is not in the heavens, and that a navi may not determine who the halacha follows?