What is the basis that allows Rabbis to create laws?

Question

I understand that the Torah gives instructions to obey Judges for legal cases and questions, but what is the basis that Rabbis have for creating new laws, such as for celebrating Chanukah with a bracha? I'm not asking for the basis for Chanukah specifically, but rather the general authority to create laws rather than just applying them.

I ask because I was not aware of the Torah explicitly saying this, and it might seem somewhat circular for the Rabbis to give themselves the authority. Yet the people seem to have traditionally accepted such practices, so here I am.

To be clear, I would be willing to accept an answer such as the authority being in the Oral Law or through rules of drush the Rabbis have to explain the Oral Law, or similar, if that is all there is to it.

Answer 1

Sources For Rabbinic Authority

There are several divergent approaches to this.

• Rambam (Introduction to MT: 26) is of the opinion that Rabbinic legislation falls under the rubric of "Do not stray from all that they tell you" (Deut. 17:11):

וכן יתבאר מהם המנהגות והתקנות שהתקינו או שנהגו בכל דור ודור, כמו שראו בית דין של אותו הדור, לפי שאסור לסור מהם, שנאמר "לא תסור, מכל הדבר אשר יגידו לך--ימין ושמאל" (ראה דברים יז,יא).

Also clarified therein, are the customs and the enactments practiced and enacted [respectively], as seen [fit] by the courts of each generation, for it is forbidden to stray from them as it says "Do not stray from all that they tell you, right or left" (Deut. 17:11).

• Ramban, however, takes issue with this (hassagot to Shoreh 1 of Sefer Hamitsvot):

הוא זצ"ל סבור שיש בכלל לאו דלא תסור כל מה שהוא מדברי חכמים בין שהן מצות כגון מקרא מגילה ונר חנוכה או שהן מן התקנות והסייגים...וראוי לפי הדעת הזו להחמיר מאד בדברי סופרים שכולם תורה הם אין ביניהם שום הפרש...ורבותינו בכל התלמוד אומרים הפך מזה שהרי הם דנין כל דברי סופרים להקל.

He [Maimonides] OBM holds that the prohibition of "Do not stray" includes all that stems from the Sages, whether they be mitsvot, such as the reading of the Megillah, and the lamp of Hannukkah, or whether they be protective enactments...And it would be appropriate according to this view to be very stringent with Rabbinic matters, for they are all Torah; there is no difference between them...But our Sages state the opposite throughout the Talmud, for they judge all rabbinic matters leniently.

His own position, however is not exactly clear and their dispute centers around the core of the question: if rabbinic authority is rabbinic, that is circular, and if it is Biblical, what's the source.

One likely approach is that according to Ramban, although rabbinic enactments lack formal authority on the basis of an actual biblical commandment, they are supported by something more fundamental than technical law itself.

One example of such an approach is that of R. Elhanan Wasserman (Kuntres Divrei Soferim), who explains that according to Ramban, it is understood that the rabbis reflect the will of God; thus, one's internal sense of morality compels one to submit to rabbinic authority:

ומה"ט אנו חייבין לעשות כדבריהן שהרי אנו מקיימין בזה רצון השי"ת שהסכימה דעתן לדעתו, ומ"מ כיון שלא בא עליהן צווי מפורש בתורה הן קלין מדברי תורה המפורשין... דכל מה שצוו חכמים אנו יודעין שכן הוא גם רצון ה' ודבר זה לעשות רצונו ית"ש כל באי עולם מצווין ועומדין מתחל' ברייתן ע"ז דכל הנמצאים נבראו לעשות רצון קונם וכל פעל ד' למענהו

And for this reason we are obligated to act according to their instruction, for in so-doing we fulfill the will of God, for their thinking matches His. Nevertheless, since there is no explicit commandment in the Torah regarding these instructions, they are more lenient than explicit commandments of the Torah...for all that the sages commanded - we know that such is the will of God. And this thing - doing the will of God - all inhabitants of the world are obligated in this, from their very inception, for all creations were created to do the will of their creator, and all of God's creation is for His sake.

His mentor R. Shimon Shkop writes very similarly in Shaarei Yosher (1 (S'fekot),7):

עלינו להזהר במצוות חז"ל עפ"י הכרת שכלנו דכיון דהם מצאו לטוב לתקן ולגזור כן הוא האמת והטוב לפנינו וכמו השכל מסכים לשמוע בקול ה' כן השכל גוזר להזהר בכל מה שהזהירו חז"ל ורבותינו הקדושים

It is our responsibility to be careful with the commandments of the Sages, on the basis of our cognitive awareness that since they saw fit to enact, such is the truth and the good, as far as we are concerned. And just as the intellect agrees to submit to God's voice, so does the intellect mandate to be careful with all that the Sages and our holy rabbis warned us about.

• A second example of such an approach would be to suggest that the authority of the rabbis is rooted in tradition, which is viewed as being an independently authoritative source. That is to say, we the Jewish people have a tradition that (certain) rabbis carry authority, and it is our prerogative to follow tradition.

This could perhaps be inferred from Ramban (ibid) who emphasizes the view of R. Nahman (Shabbat 23a) that rabbinic legislation is based on the verse "Consult you father, and he will inform you; your elders, and they will tell you" (Deut. 32:7).

רב נחמן אמר שאל אביך ויגדך זקניך ויאמרו לך...אין להם סמך אלא בפסוק שאל אביך ויגדך זקניך ויאמרו לך...שאין זה בא בכלל הכתוב שאמר כי יפלא ממך דבר למשפט אלא בכלל שאל אביך ויגדך זקניך ויאמרו לך שהיא צוואה לקבל מן הזקנים על הכלל.

Rav Nahman said "Consult your father, and he will inform you; your elders, and they will tell you" they have no basis except for [this verse] for this is not included in the verse "When the legal matter confounds you" (Deut. 17:18), but rather included in "Consult your father..." which is an instruction to heed Elders in general.

• A variation of this, would be that the rabbinic right to legislate is a matter of tradition (not that following them, is a matter of tradition) similar to a halakha l'Moshe miSinai. This seems to be the understanding of R. Moses di Trani who writes the following in fifth chapter of his introduction to Kiryat Sefer:

נראה דלדעת הרמב"ן ז"ל אין לדברי חכמים שום שורש בתורה...אלא שנראה מדבריו כי מפי הקבלה הורשו מאתו ית' לתקן ולסדר

It appears that according to Ramban OBM, the authority of the sages has no basis in the Torah...rather it appears from his words, that on the basis of tradition, they were authorized from Him to order and arrange.

One can infer this from Ramban himself, who writes (ibid):

שהורשו מאתו ית' מפי הקבלה לתקן ולסדר

That they were authorized from Him on the basis of tradition, to enact and order.

[It could be argued that these last two approaches pegging rabbinic authority on tradition (that the Jewish people have a tradition that (certain) rabbis carry authority, and R. Di Trani's view that the rabbis have a tradition), are not mutually exclusive. The former relates to our obligation to heed the Sages, whereas the latter relates to the source for the rabbis themselves to make these rules in the first place].

---

Scope of This Authority

It is important to note that not all rabbinic authority in necessarily rooted in the same source

• According to Rambam all rabbininc authority is rooted in the verse "According to the law which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do; thou shalt not turn aside from the sentence which they shall declare unto thee, to the right hand, nor to the left." (Deut. 17:11).

This includes their own takkanot, as we brought above (from his introduction to MT), and seems to even includes enactments not meant to protect a particular biblical commandment, as he writes at the end of his introduction:

ויש מצות אחרות שנתחדשו אחרי מתן תורה וקבעו אותן נביאים וחכמים ופשטו בכל ישראל כגון מקרא מגלה וחנכה ותשעה באב...כל אלו המצות חייבין אנו לקבלם ולשמרם שנ' לא תסור מן הדבר אשר יגידו לך ימין ושמאל

And there are other mitsvot that were introduced after the giving of the Torah, and prophets and sages enacted them, and they spread through all of Israel, such as the Megillah reading, Hannukkah, and Tisha B'av...We are required to accept all of these mitsvot, and to observe them, as it says "Do not stray from the matter that they tell you, to the right or to the left" (Deut. 17:11).

This also includes their interpretation of the Torah, as he writes in Sefer HaMitsvot (Asseh: 174):

שצונו לשמוע לבית דין הגדול ולעשות כל מה שיצוו בו מאיסור והיתר. ואין הבדל בזה בין הדבר שיסברוהו או הדבר שיוציאוהו בהקש מן ההקשים שהתורה נדרשת בהן או הדבר שיסכימו עליו שהוא סוד התורה...והוא אמרו יתעלה (ר"פ שופטי') על פי התורה אשר יורוך.

• We have already noted that Ramban disagrees with Rambam about the extent of rabbinic authority included in biblical law. However, he seems to agree that some rabbinic law is included in biblical law. Specifically, he seems to hold that those enactments that are meant to safeguard biblical law, are themselves biblical, as he writes in his commentary to Deuteronomy (4:2)

רמב"ן פרשת ואתחנן ומה שתקנו חכמים משום גדר, כגון שניות לעריות וכיוצא בהן, זו היא מצוה מן התורה

What the Sages decreed as a safeguard, such as secondary forbidden sexual relationships, and the like is a biblical commandment.

---

In summary: the legislative authority of the rabbis may be biblical (Rambam), or their biblical authority may be limited to enacting safeguards to biblical commandments (Ramban), with their authority in other areas possibly stemming from their role as moral authorities (R. Wasserman), the weight of tradition that their office carries, or a divine mandate transmitted orally (R. di Trani).

Circularity: To rehash the relevance to the circularity issue, rabbis claiming biblical authority (Rambam and to a limited extent Ramban) isn't logically fallacious, as is a circular argument of basing authority on themselves. It may of course be false (if their understanding of the Bible is wrong). Similarly one can deny that rabbi are moral authorities (R. Wasserman), but this nevertheless avoids the issue of circularity, as the claim is not that they are authoritative because they say so, but because it is supposedly axiomatic. Similarly, if tradition carries its own authority, and by extension that of the rabbis, rabbinic authority wouldn't be circular, although again, would could deny the premise that tradition carries authority. Lastly, the claim that the rabbis are endowed with a divine mandate (R. di Trani) isn't circular, although one can of course claim that it is false.

Answer 2

This is answered directly by Rambam in his introduction to the Mishna Torah. This authority to make new laws was taught directly by Moshe Rabbeinu as cited below from Deuteronomy 17:11.

"The mitzvot given to Moses at Mount Sinai were all given together with their explanations, as implied by [Exodus 24:12]: "And I will give you the tablets of stone, the Torah, and the mitzvah."

"The Torah" refers to the Written Law; "the mitzvah," to its explanation. [God] commanded us to fulfill "the Torah" according to [the instructions of] "the mitzvah." "The mitzvah" is called the Oral Law.

Moses, our teacher, personally transcribed the entire Torah before he died. He gave a Torah scroll to each tribe and placed another scroll in the ark as a testimonial, as [Deuteronomy 31:26] states: "Take this Torah scroll and place it [beside the ark...] and it will be there as a testimonial."

"The mitzvah" - i.e., the explanation of the Torah - he did not transcribe. Instead, he commanded it [verbally] to the elders, to Joshua, and to the totality of Israel, as [Deuteronomy 13:1] states: "Be careful to observe everything that I prescribe to you." For this reason, it is called the Oral Law.

Even though the Oral Law was not transcribed, Moses, our teacher, taught it in its entirety in his court to the seventy elders. Elazar, Pinchas, and Joshua received the tradition from Moses. [In particular, Moses] transmitted the Oral Law to Joshua, who was his [primary] disciple, and instructed him regarding it.".....

"From the entire [body of knowledge stemming from] the two Talmuds, the Tosefta, the Sifra, and the Sifre, can be derived the forbidden and the permitted, the impure and the pure, the liable and those who are free of liability, the invalid and the valid as was received [in tradition], one person from another, [in a chain extending back] to Moses at Mount Sinai.

Also, [the sources mentioned above] relate those matters which were decreed by the sages and prophets in each generation in order to "build a fence around the Torah." We were explicitly taught about [this practice] by Moses, as [implied by Leviticus 18:30]: "And you shall observe My precepts," [which can be interpreted to mean]: "Make safeguards for My precepts."

Similarly, it includes the customs and ordinances that were ordained or practiced in each generation according to [the judgment of] the governing court of that generation. It is forbidden to deviate from [these decisions], as [implied by Deuteronomy 17:11]: "Do not deviate from the instructions that they will give you, left or right."

It also includes marvelous judgments and laws which were not received from Moses, but rather were derived by the courts of the [later] generations based on the principles of Biblical exegesis. The elders of those generations made these decisions and concluded that this was the law. Rav Ashi included in the Talmud this entire [body of knowledge, stemming] from the era of Moses, our teacher, until his [own] era."

Answer 3

The comments, above, approach the correct analysis.

This question is discussed in detail in Talmud Shabbat 23a, near the middle of the page (as seen in the Sefaria site).

There is a statement that says that one makes the blessing "Who has sanctified us with His commandments and commanded us to light the Chanukah light."

It is a given that Chanukah, itself, is a Rabbinical holiday, so the Talmud is puzzled that in the blessing, we say that G-d commanded us to light, when we know that it was the Rabbis who commanded us.

That leads to your, and the Talmud's question, how is it that G-d commanded us, i.e. where did G-d give the authority to rabbis to make commandments that we have to follow as if they were Torah commandments?

Disputed sources - Rav Avia says from Deut. 17:11 (what @DannySchoemann cited), and Rav Nechamia says it comes from Deut. 32:7 - "Ask your father and he will tell you; your elders and they will say it to you."

I'll try to add some further commentary to this analysis, later - unless others wish to edit here, further.