Feedback from Rabbis

My First Question:

Hi there! Thanks very much! My question is that the Pharisees removed the role of the Priests in ancient times because they were concerned they had become corrupt. I think this has had a significant impact on Jewish law because the Priests were supposed to minister the law to the Israelite people. Do you think the function of the Priests will ever be reinstated? Do you think this affects the legality of Jewish law today? With thanks 

Rabbi Yoel Lieberman answered my question on the Yeshiva.co website:

Response from Rabbi to First Question:

The Pharisees did not remove this from the Priests. Many Priests were corrupt, so more of the ordinary people had to step in to act as teachers. Torah constantly speaks about your elders and your judges, without linking them to the Priesthood. Thus we see that the teachers do not have to be the Priests. 

My First Follow-Up Question:

Hi there! Well this is what I am questioning; the legality of 'other people stepping in' and basically replacing what is said in the Torah. Ok, if this needed to happen for a while, because of unusual circumstances, but forever?? Because now we are forever in a state that is different to what is said in the Torah.

Yes the Torah does mention several parties and several roles, but there are only a select few who are identified in terms of administering the LAW. Of course, law is central to Jewish religious practice.

The Torah does not say that elders are entitled to administer the law. And even if it did, rabbis are allowed to be young. The Torah says that only the 'priests', 'judges' and 'sarim' are allowed to administer the law. Most Jewish laws today however have been made by 'rabbis'.

The roles of 'priests', 'judges' and 'sarim' all have particular requirements that have been specified in the Torah. These roles are not in my opinion interchangeable and can't be dropped and replaced by other roles that do not meet the same requirements. In fact, the only party called 'Rabboni' in the bible was Jesus!! To do something different to what the Torah says, in particular in the field of Jewish LAW I think is quite significant.. The temple was destroyed and this changed things but things were not supposed to be changed forever..

What I am saying is, I don't think we are so easily entitled to say that a teacher is equivalent to a priest or judge, or that we can replace the priest and judge with a teacher. I think that happened in the past as an accident but it is not in fact consistent with the eternal words of the Torah. 

Response from Rabbi to First Follow-Up Question:

I'm not sure where in the Torah you've seen that the priests are supposed to be the exclusive teachers of the Jewish People. Jethro suggested to Moses to have many judges appointed by the the different tribes, and G-d agreed to this. 70 Elders were appointed to assist Moses - and eventually these were the forerunners of the High Court known as the Sanhedrin. Historically, there were judges if the Sanhedrin throughout the period of the First Temple who were not priests. I'm not sure where you are getting your information from.

My Second Follow-Up Question:

Well I would first like to clarify that I did not mean to suggest that I thought priests should be the only teachers of the law - there are several roles identified as having a legal element. Priests, judges and Sarim have all been mentioned in the first five books. We are so careful about the four species we bring to the succah, for example, the Torah says to bring an etrog, lulav, hadass and aravah - we don't bring an etrog, lulav, hadass and a cactus! So why when the Torah says that the priests, judges and Sarim are to make law, do the rabbis make the law instead?? We know that this change was due to the destruction of the temple - but if the rain came and washed away the aravah from our succah, would we continue to live in a succah with only three species from now on?

I will mention that I am not actually suggesting a return to biblical torah as such; I am in fact suggesting a step forward - that this mechanism of the jewish legal system that is in Deuteronomy - where the priest and judge get together to perform the specific legal function of resolving controversy - has never been implemented once throughout the history of the Jewish religion. Priests and levites were sent out throughout the land (along with officials) in the time of Judah to teach the law but never was a judge put together with priests as stated in Deuteronomy 17:8-11 to perform the discrete controversy resolution function.

This is very different to the Sanhedrin. The Sanhedrin was in fact a crude representation of the situation described in Numbers 11:16, where Moses called for help with responding to the complaints of the Israelites in the wilderness but Hashem describes a remedy that is only designed to happen once. When in fact it happens again, it is regarded as an unlawful act (Numbers 11:2-29).

I am not talking about how things have been necessarily; I am talking about how things should be and where I am getting this information is from the Torah!! The Torah says to use an etrog, lulav, hadass and aravah, not a cactus and it says that law must be made by priests, judges and also sarim, not rabbis. There are different people and processes involved in the law of the Torah. It is quite a complex legal system but one that has never worked according to its own laws. We know for example that Hashem will use the priests as His emmisaries (Malachi 2:7) and there are certain regulations for the position of judge. The rabbis currently do not meet these conditions and were not the beneficiaries of the Levitic blessing.

Response from Rabbi to Second Follow-Up Question:

I'm confused by your comparison and other statements. Perhaps let us examine one thing at a time. You wrote: "....when the Torah says that the priests, judges and Sarim are to make law, do the rabbis make the law instead?" No one except for G-d makes any laws - where did you find the idea that any human, no matter the title can make the law?

The Pharisees did not remove the priests (kohanim) from their role. What removed them was the destruction of the Second Temple.

There were indeed some high priests who were Sadducees and were not trusted very much by the Rabbis. But the priests always functioned until there was no more Temple.

My First Follow-Up Question:

My next question would be then, should they have stopped functioning simply because the temple was destroyed?? I ask because it was not only temple duties that the priests had; they also had the role of interpreting the law of the Torah for the Jewish people:

Deuteronomy 21:5:

And shall come near the Priests the sons of Levi for in has chosen them HASHEM to minister and to bless in the name of HASHEM and by their word every controversy and every strokeMalachi 2:7:

For the lips of a priest ought to preserve knowledge, because he is the messenger of HASHEM Almighty and people seek instruction from his mouth.

Deuteronomy 17:8:

If there arise ... words (matters) of controversy within your gates, aloud (voice) and ascend into the place that HASHEM shall choose;

Deuteronomy 17:9:

And you shall come to the priests the Levites and to the judge that shall be in those days and inquire and they shall declare to you (untranslatable word) the words of judgment.

I was educated in the Orthodox tradition and have practiced the Oral Torah as best I could but I came across these passages and it seems to me that all the explaining about what the Torah requires is supposed to be done by priests. When the procedure for making law is wrong, the laws themselves will be wrong and Israel will not be behaving in the way that Hashem has worked out for us. 

I think this does affect our relationships with the outside world, we are worried about the frenzy of anti-semitic enemies but - I don't think we realise - we are not really being authentic ourselves; we are not trying to establish the holy nation of Israel, we are trying to establish a secular democracy. I studied law you see and this is a question about legality; the legality of Jewish laws, the way in which laws are made is just as important as the laws made themselves. If we do not do things in the way the Torah says, we are the ones at fault.

Response from Rabbi to First Follow-Up Question:

The Kohanim, who come from an elite family within the elite Tribe of Levi, always provided outstanding Torah scholars and teachers, and they still do. However, never was the responsibility for Torah teaching and scholarship limited only to the Kohanim. One can bring many proofs of that, including from the Holy Scriptures themselves (as it says for example above, "to the priest and to the judge who will be at that time." I will provide for you just one citation, from the Rambam (Maimonides) among many. 

My Second Follow-Up Question:

You said it was never the responsibility of the Kohanim alone to make law.. so this is what I am questioning; who is allowed to make Jewish law?? Because the Torah is a book of LAW, law is everything to Judaism.

What I have discovered and contrary to what people assume, is that the Torah only authorises a FEW select people to make the law. These are the 'priests', 'judges' and 'sarim'. These roles all have particular requirements that have been specified in the Torah. In my opinion, these roles are not interchangeable and they can't be dropped and replaced by other roles that do not meet the same requirements.

The Torah identifies these roles - and does not mention any other roles, so, as far as following the Torah goes, we NEED to have THESE roles, and not others.

As you say, Deuteronomy 17:8-11 says that when there is a controversy about what the law requires, we are to go to the priests AND judge. We have NEVER done that though!!.. throughout the history of Judaism. We have had had priests, and we have had judges, but we have NEVER had the priests AND the judge, sitting together to declare the words of judgement.

I read the passages you sent me, thank you for those, and they also confirm the role that the priests AND judge were to play with regard to the law (Deut 17:9). What I am saying is, that the people making law in Judaism should be the 'priests', 'judges' and 'sarim', exactly how it is requested by the Torah. In fact, the role 'Rabboni' mentioned in the bible was talking about Jesus..

Response from Rabbi to Second Follow-Up Question:

It is not clear to me if you believe only in the Written Law, as you seem to only quote scripture and not the works of the Rabbis. If that is the case, then we do not have much to discuss because we would be believers in totally different systems. If you do respect Rabbinic works, we can send you some sources.  

My Third Follow-Up Question:

Yes I do only quote from the Written Torah and well, this is because the Written Torah says that ONLY the priests and judge can make the laws of Israel (Deuteronomy 17:9). The Oral Torah commentaries suggest that the rabbis mistakenly assumed this passage was referring to them - but - they did not receive the blessing of Hashem given to the Levites.

The Written Torah sets out several parties who are authorised to carry out Jewish legal functions. These legal functions are different and each have their own Torah guidelines. The first five books identify the priests, judges and Sarim as having roles in administering the law - but - there is also a separate function to resolve controversy. This means that, if the judge wants to apply the law but someone raises a question that the judge cannot decide, there is a special gathering between the priests and judge and these two parties together create a new law, which then becomes treated as the Written Torah itself (Deuteronomy 17:11).

There are several processes in this respect - declaring the law, interpreting the law etc. but there is also the process of resolving disagreements about the law. I am not saying we should 'go back to biblical times' because this legal mechanism has never in fact been implemented once throughout the course of Jewish history. Priests and Levites were sent out through the land (along with officials) in the time of Judah to teach the law but never was a judge put together with priests to perform this discrete controversy resolution function.

We are so careful about the four species we bring to the succah, for example, the Torah says to use an etrog, lulav, hadass and aravah - we don't use an entrog, lulav, hadass and a cactus! So why, when the Torah says that the priests and judges are to make law, do the rabbis make law instead?? We know this change was due to the destruction of the temple - but if the rain came and washed away the aravah from our succah, would we continue to live in a succah with only three species from now on? Back in Torah times it WAS the Levites and priests and judges involved in the law but it was also others too - some were authorised by the Written Torah, others were not.

Moreover, parts of the Oral Torah are openly stated as being written by rabbis and the text is full of public disagreements in opinion. Both opinions can't be right. The resolving of controversy is essential to Judaism because it helps us understand what the Written Torah requires. This is the entire justification for the Oral Torah anyway. What the Oral Torah has missed however, is that Hashem has already anticipated the problem of controversy and has given us a special legal mechanism for this exact problem: Deuteronomy 17:8-11. I am not saying that NOTHING was handed down orally; what I mean is, it is very important to distinguish what was handed down from Sinai from what has just come from the opinion of a rabbi and that distinction is not currently being made by Orthodox Judaism at the moment.

Response from Rabbi to Second Follow-Up Question:

Thank you for your detailed reply. Indeed originally the Levites and Kohanim were supposed to have a central function in the ruling of Jewish law. They were supposed to receive the tithes from the Jewish people, which would free them of the financial yoke and make themselves available for the scholarly pursuit of the Torah, which would enable them to be the prime scholars and judges of the Torah. However, as the tithes dwindled, their role in this regard dwindled, and has eventually become the responsibility of the most skilled and learned individuals who have devoted themselves to the study of Torah law. The Rambam (Shmitta 13, 12-13) describes this as follows:

וְלָמָּה לֹא זָכָה לֵוִי בְּנַחֲלַת אֶרֶץ יִשְׂרָאֵל וּבְבִזָּתָהּ עִם אֶחָיו מִפְּנֵי שֶׁהֻבְדַּל לַעֲבֹד אֶת ה' לְשָׁרְתוֹ וּלְהוֹרוֹת דְּרָכָיו הַיְשָׁרִים וּמִשְׁפָּטָיו הַצַּדִּיקִים לָרַבִּים שֶׁנֶּאֱמַר ([/Deuteronomy.33.10]דברים לג י " (יוֹרוּ מִשְׁפָּטֶיךָ לְיַעֲקֹב וְתוֹרָתְךָ לְיִשְׂרָאֵל". לְפִיכָךְ הֻבְדְּלוּ מִדַּרְכֵי הָעוֹלָם לֹא עוֹרְכִין מִלְחָמָה כִּשְׁאָר יִשְׂרָאֵל וְלֹא נוֹחֲלִין וְלֹא זוֹכִין לְעַצְמָן בְּכֹחַ גּוּפָן. אֶלָּא הֵם חֵיל הַשֵּׁם שֶׁנֶּאֱמַר ([/Deuteronomy.33.11]דברים לג יא " (בָּרֵךְ ה' חֵילוֹ". וְהוּא בָּרוּךְ הוּא זוֹכֶה לָהֶם שֶׁנֶּאֱמַר ([/Numbers.18.20]במדבר יח כ " (אֲנִי חֶלְקְךָ וְנַחֲלָתְךָ":

Why were the Levites not allotted land in Eretz Yisrael or a share in its booty along with their brethren? Because they were singled out to serve the L-rd and minister to him, to teach his upright ways and just laws to many people, as it is written: "They shall teach thy laws to Jacob, and thy instruction to Israel" ([/Deuteronomy.33.10]Deuteronomy 33:10). For this reason, they were separated from worldly affairs: they fought no battles like the rest of Israel; they inherited no land; they won nothing by means of their physical ability. They are indeed the L-rd's army, as it is written: "Bless, O L-rd, his substance" (11). He, blessed be He, has won them for Himself, as it is written: "I am your portion and your share" ([/Numbers.18.20]Numbers 18:20).

וְלֹא שֵׁבֶט לֵוִי בִּלְבַד אֶלָּא כָּל אִישׁ וְאִישׁ מִכָּל בָּאֵי הָעוֹלָם אֲשֶׁר נָדְבָה רוּחוֹ אוֹתוֹ וֶהֱבִינוֹ מַדָּעוֹ לְהִבָּדֵל לַעֲמֹד לִפְנֵי ה' לְשָׁרְתוֹ וּלְעָבְדוֹ לְדֵעָה אֶת ה' וְהָלַךְ יָשָׁר כְּמוֹ שֶׁעֲשָׂהוּ הָאֱלֹקים וּפָרַק מֵעַל צַוָּארוֹ עַל הַחֶשְׁבּוֹנוֹת הָרַבִּים אֲשֶׁר בִּקְּשׁוּ בְּנֵי הָאָדָם הֲרֵי זֶה נִתְקַדֵּשׁ קֹדֶשׁ קָדָשִׁים וְיִהְיֶה ה' חֶלְקוֹ וְנַחֲלָתוֹ לְעוֹלָם וּלְעוֹלְמֵי עוֹלָמִים וְיִזְכֶּה לוֹ בָּעוֹלָם הַזֶּה דָּבָר הַמַּסְפִּיק לוֹ כְּמוֹ שֶׁזָּכָה לַכֹּהֲנִים לַלְוִיִּם. הֲרֵי דָּוִד עָלָיו הַשָּׁלוֹם אוֹמֵר )[/Psalms.16.5]תהילים טז ה ( "ה' מְנָת חֶלְקִי וְכוֹסִי אַתָּה תּוֹמִיךְ גּוֹרָלִי":

Not only the tribe of Levi, but each well-informed thinking person whose spirit moves him to devote himself to the service of the L-rd, to know the L-rd, and has walked uprightly after casting off his neck the yoke of many a cunning wile that men contrived, is indeed divinely consecrated, and the L-rd will forever and ever be his portion. G-d will provide sufficiently for his needs, as he did for the Priests and the Levites. David, may he rest in peace, declared: "The L-rd is my allotted portion and my cup; thou holdest my lot" ([/Psalms.16.5]Psalm 16:5).

We do indeed pray for our complete redemption and the coming of the Mashiach and the reinstatement of the Tribe of Levi to its original intended role.

Regardless, the role of the Priests never changed, certainly not by the Pharisees. It was mainly a matter of corruption during the late Second Temple period. 

Levites and Priests did often serve on the courts as well, since they were free most of the time to study Torah. But that was not a role which was exclusively theirs. They were merely teaching and ruling on the same Torah the non-priests had.

My First Follow-Up Question:

Selling the role of the High Priest to the highest bidder! That doesn't sound very holy! I was referring the passages that deal with the authority to make Jewish law. There are several parties identified in the Tanach in relation to Jewish law-making, including the priests:

Deuteronomy 21:5:

And shall come near the Priests the sons of Levi for in has chosen them HASHEM to minister and to bless in the name of HASHEM and by their word every controversy and every strokeMalachi 2:7:

For the lips of a priest ought to preserve knowledge, because he is the messenger of HASHEM Almighty and people seek instruction from his mouth.

the judges (Deuteronomy 16:18) and the sarim (Exodus 18:25). There is in fact a special legal function to be played by the priests and judge working together in Deuteronomy 17:8-11, regarding differences of opinion that arise in Israel. 

I have been focussing on these passages for some time and feel it is important to really incline to the words of Hashem in terms of how He wants Judaism to be. I noticed things are not really happening in Judaism in the way Hashem has described in the Torah. Yes, the Jews finally achieved the state of Israel in 1948 and it has taken some settling in but we still don't have so many of the things mentioned and required by the Torah. One of the main things about Judaism is its laws and, if we do not follow the laws of the Torah, we are essentially breaking the Torah!! None of the parties mentioned in the Tanach are making Jewish laws today. We are not following the law of the priests, judges and sarim. We have appointed leaders that are different to the types of leader mentioned in the Torah. Do you realise that the person referred to as, 'Rabboni' in the New Testament was Jesus?!!

I found your article online https://torah.org/learning/pirkei-avos-chapter6-622/ about the falibility of the Sages. I myself was educated in the Orthodox faith and also grew up wanting to carry out my duty in the most observant of ways. For many years I also assumed the Pharisaic Rabbinic tradition was supposed to make Jewish law. We assume the Oral Law fills the gaps left in the written Torah - but - in fact, when we look to the words of the Torah, the Torah says the PRIESTS and the JUDGES are to fill in the gaps in the Torah!!:

Deuteronomy 17:8:If there arise ... words (matters) of controversy within your gates, aloud (voice) and ascend into the place that HASHEM shall chooseDeuteronomy 17:9:And you shall come to the priests the Levites and to the judge that shall be in those days and inquire and they shall declare to you (untranslatable word) the words of judgmentThis is what I meant about the Pharisees removing the role of the priests; I meant they stopped regarding the priests as the ministers of Hashem's law (Deuteronomy 21:5) and became ministers of the law themselves. 

Following some information discussed by another Jewish scholar, I noticed this is not actually authorised by the Torah. How could it be that we are doing something different to the Torah and we are right and the Torah is wrong?! I think we have become accustomed to a different system but what is more important? Man's system or Hashems?! There are certain things required for genuinely authentic Jewish observance! The way we practice our law is important in many different respects, it affects how other nations view us as well. I think we have made a profound mistake with the law-making and now need to take a second look at how we are practicing Judaism. I think if we really believe in the Torah, we have to keep moving forward towards a more closer observance of the laws.

Response from Rabbi to First Follow-Up Question:

Another relevant verse is Deut. 33:10 - that teaching Torah was one of Levi's tasks. The Mishna also makes mention of "courts of priests" which existed in Temple times (e.g. Ketubot 1:5) - which seemed to specialize in laws relevant to the priests and the Temple service.

Even so, deciding law was not a role exclusive to the Priests or Levites. They are often specified in conjunction with courts because this was viewed as a big part of their role. The Temple service did not take much of their time (the Priest would serve two weeks of the year and the Levites had only a few obligations). And this is why Deut 33:10 and elsewhere views them as upholders of the Torah. Yet, being a Torah scholar and a member of the Sanhedrin was merit-based. In fact, many of the verses which mention Priests as judges say to the effect - "to the Priest or to the judge who will be in those days." Priests did not have an automatic in, as the Talmud put it: "Greater a bastard Torah scholar than an ignorant High Priest."

In terms of Modern Israel, you are right that it is officially a secular, democratic state. It's certainly not the Messianic Era we hope for, when the rule will be in the hands of a king, descendant of King David, and the laws set by the Sanhedrin. Yet we have much to be thankful for that there is a state which today is home to millions of Jews, affording us protection, equal rights, and a stable economy.

Note also that there is no true ordination today - since a rabbi can only be ordained from another rabbi who himself was ordained from an ordained rabbi - going all the way back to Moses. Thus, we cannot have a true Sanhedrin today, only certain types of lower courts. And that role is fulfilled by the greatest Torah scholars of each generation. (Some understand Deut. 17:8-13 as referring more loosely to obeying the decisions of the greatest rabbis of each generation.) Thus, today we only have rabbis and not true judges.

My Second Follow-Up Question

You say several parties other than the priests and judges were making Jewish law in the past and that admission to the Sanhedrin and Torah scholarship was merit-based - ok, those are facts of history and the Oral Torah has recorded those facts for us. I think that is different however to me asking - who is supposed to make Jewish law? Who does the Torah say is entitled to make Jewish law?? In relation to the making of Jewish law, the Torah only ever mentions the priests and also the priests working with judges.

I know people in the past have assumed that other parties can be added into the Torah's statement of 'priests and judges' - but are we really allowed do that?? I think to say this passage means the priests and judges - or someone else - would be bal tosif - adding to the law (as prohibited by Deuteronomy 4:2/13:1). To go further and then say it should be 'someone else' and NOT the priests or judge, is even more divergent.

I point out that the Torah does not say the 'Sanhedrin' can make laws either. The Sanhedrin was modeled on the system of Elders in the Wilderness (Numbers 11:16). That system was only supposed to happen once, during that very time in the Wilderness, and not again (Numbers 11:2-29).

The Torah passages identifying the priests and judges as the lawmakers of Israel are timeless, so how can it be that we have done something different for over 2,000 years?? I think the answer is that the priests were SUPPOSED to be making law; that is how things began. They stopped making law - because something went wrong. Yes, the priestly role fell out of use - but it was not something good, or something we were supposed to accept forever. There were wars that led to the temple being destroyed; those wars made things change in Judaism, a change for the worse, a step away from what the Torah wanted.

The Talmud said, 'better a Torah scholar over an ignorant Priest' and I am sure the Pharisees had great cause to think that at the time; moral corruption makes zealous people angry and that can be heard in the Talmudic statements! As stated in Moed Katan 17a:

What is the meaning of that which is written: "For the priest's lips should keep knowledge, and they should seek Torah at his mouth; for he is a messenger [malakh] of the Lord of hosts" (Malachi 2:7)? This verse teaches: If the teacher is similar to an angel [malakh] of the Lord, then seek Torah from his mouth, but if he is not pure and upright, then do not seek Torah from his mouth; even if he is knowledgeable about Torah, do not learn from him.

The question today, as it was back then, is - how to make sure the priests do not say and do ignorant things??

This is where Deuteronomy 17:8-13 comes in. The priests were NOT supposed to act as a Court of Priests either. Again, they did so in the past and that was recorded. However, they were supposed to act as a Court of priests AND a judge (Deut 17:8-13). Jewish law was supposed to be made by group opinion. The balance of authority was going to reduce the possibility for corruption within the priestly sect.

That never happened though. The priests and judges never made law together. Instead, the temple was destroyed and different practices emerged; the Sanhedrin was established and modeled on Numbers 11:16 but, as I say, that was not supposed to happen (Numbers 11:2-29).

What happened in history and the fact that the Talmudic scholars realised something was wrong with the priests does not affect our continuing obligations about the priests and judges today. We still need to follow the Torah and the Torah still says that Jewish law should be the remit of the priests and judges. And this is no ordinary mistake either.. this is a mistake that goes to the very heart of Jewish law. The Torah is a book of laws! How can we be following Jewish law if we are not making Jewish law in a legitimate way??! How can we follow a law by breaking it?

I would disagree that Israel is safe at the moment. There could be bombs and fighting at any time. The Torah says that if we do not follow the Torah, we will be subject to curses and a lack of peace (Deuteronomy 28:15-6). As I say, I was educated in the Pharisaic tradition but I see this as entirely consistent with the spirit of Orthodoxy; to go every single mile necessary to ensure we are complying with our duties to Hashem.

I think, following the political events of the time that the Pharisaic school ended up making a significant adjustment to the practice of Judaism and we will not be truly following Torah until we adjust it again to how it should be, namely, by setting up the authority of the priests AND judge as law-makers in Judaism - for the first time in Jewish history. This affects every Jewish law ther could ever be! Nothing can change unless we change it!!

Response from Rabbi to First Follow-Up Question:

It's clear from Deut. 17 that either Priests or judges (or a combination of the two) decided laws, and this is how it was historically until the end of the Second Temple period. At that point, the high court moved to different locations, and although they voluntarily stopped judging capital cases, they functioned for a good while longer.

Rabbinic ordination (the qualification required to be a judge) died out sometime during the era of the Talmud. But by then most of the Oral Law was recorded and in pretty complete form.

Another general issue is that the law of the court is really not to enact new laws but to interpret the Torah and apply it. At most they enacted extra fences around Torah law as extra safeguards. But you are right that we do not find rabbis who weren't part of the Sanhedrin (and even the ones on the Sanhedrin) to be creating new laws which did not exist beforehand.